-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H90ugJLehPpZadk+w3AXm8ZTbhVWnc+fLJqhaphxIGGKKOVnZ1HQW5zgVfi+ymrQ l/YRzEDt4NeMZ2Gsln3XQg== /in/edgar/work/20001103/0000950123-00-010008/0000950123-00-010008.txt : 20001106 0000950123-00-010008.hdr.sgml : 20001106 ACCESSION NUMBER: 0000950123-00-010008 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001103 GROUP MEMBERS: GOLDMAN SACHS GROUP INC GROUP MEMBERS: GROUP MEMBERS LISTED IN FILING SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: [6211 ] IRS NUMBER: 133501777 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-56295 FILM NUMBER: 752263 BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: [6211 ] IRS NUMBER: 133501777 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 y41996atsc13da.txt AMENDMENT NO. 10 TO SCHEDULE 13D 1 SECURITIES EXCHANGE COMMISSION Washington, D.C. 20549 File No. 005-56295 ----------------------------------------------------- SCHEDULE 13D/A (Rule 13d-101) Amendment No. 10 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) The Goldman Sachs Group, Inc. --------------------- (Name of Issuer) Common Stock, par value $.01 per share --------------------------- (Title of Class of Securities) 38141G 10 4 --------------------- (CUSIP Number) Gregory K. Palm James B. McHugh The Goldman Sachs Group, Inc. 85 Broad Street New York, New York 10004 Telephone: (212) 902-1000 -------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) October 31, 2000 -------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) 2
CUSIP NO. 38141G 10 4 13D 1. NAMES OF REPORTING PERSONS: Each of the persons identified on Appendix A. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP As to a group consisting solely of Covered Persons(1) (a) [x] As to a group consisting of persons other than Covered Persons (b) [x] 3. SEC USE ONLY 4. SOURCE OF FUNDS: OO as to Covered Shares(1), OO and PF as to Uncovered Shares(2) (Applies to each person listed on Appendix A.) 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM [ ] 2(d) OR 2(e) (Applies to each person listed on Appendix A.) 6. CITIZENSHIP OR PLACE OF ORGANIZATION United States unless otherwise indicated on Appendix A. NUMBER OF 7. SOLE VOTING POWER (See Item 6) As to SHARES Covered Shares, 0 As to Uncovered BENEFICIALLY Shares, as stated in Appendix A OWNED BY REPORTING 8. SHARED VOTING POWER (See Item 6) PERSON (Applies to each person listed on WITH Appendix A.) 278,447,000 Covered Shares held by Covered Persons 6,476 Uncovered Shares held by Covered Persons(3) 1,420,105 Other Uncovered Shares held by Covered Persons(4) 10,987,710 shares held by KAA(5) 16,243,610 shares held by SBCM(5) 9. SOLE DISPOSITIVE POWER (See Item 6) As to Covered Shares, less than 1% As to Uncovered Shares, as stated in Appendix A 10. SHARED DISPOSITIVE POWER (See Item 6): As to Covered Shares, 0 As to Uncovered Shares, as stated in Appendix A 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 279,873,581(6) 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x](6) (Applies to each person listed on Appendix A.) 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 57.7%(6) 14. TYPE OF REPORTING PERSON: OO as to persons listed in Appendix A under the caption "Trusts"; PN as to persons listed in Appendix A under the caption "Partnerships"; CO as to persons listed in Appendix A under the caption "Corporations"; IN as to all other persons listed in Appendix A.
- ------------------ (1) For a definition of this term, please see Item 2. (2) For a definition of this term, please see Item 3. (3) These are Uncovered Shares also described in Row 7 which each Covered Person is deemed to beneficially own by application of Rule 13d-5(b)(1), but do not include the Uncovered Shares described in note 4. Each Covered Person disclaims beneficial ownership of Uncovered Shares held by each other Covered Person. (4) These are Uncovered Shares held by 88 private charitable foundations established by 88 Covered Persons each of whom is a co-trustee of one or more of such private charitable foundations and may be deemed to beneficially own such Uncovered Shares. Each other Covered Person may be deemed to beneficially own such Uncovered Shares by application of Rule 13d-5(b)(1). Each such Covered Person disclaims beneficial ownership of such Uncovered Shares, and each other Covered Person also disclaims beneficial ownership of such Uncovered Shares. 2 3 (5) For a definition of this term, please see Item 2. The Covered Persons may be deemed to be members of a "group" with KAA and SBCM. Each Covered Person disclaims beneficial ownership of shares of Common Stock held by KAA and SBCM. (6) Excludes 10,987,710 and 16,243,610 shares of Common Stock held by KAA and SBCM, respectively, as to which each Covered Person disclaims beneficial ownership. 3 4 APPENDIX A
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Bradley I. Abelow 0 0 0 0 Peter C. Aberg 0 0 0 0 Paul M. Achleitner Austria 0 0 0 0 Alberto F. Ades Argentina 0 0 0 0 Gregory A. Agran 0 0 0 0 Raanan A. Agus 0 0 0 0 Jonathan R. Aisbitt UK 0 0 0 0 Elliot M. Alchek 0 0 0 0 Andrew M. Alper 0 0 0 0 Philippe J. Altuzarra France 0 0 0 0 Rebecca Amitai 0 0 0 0 Lay Pheng Ang Singapore 0 0 0 0 Michael Appleby 0 0 0 0 Kazutaka P. Arai North Korea/ 0 0 0 0 South Korea David M. Atkinson UK 0 0 0 0 Mitchel J. August 0 0 0 0 Armen A. Avanessians 0 0 0 0 Dean C. Backer 0 0 0 0 Michiel J. Bakker The Netherlands 0 0 0 0 Stephen D. Balsamo 100 0 100 0 Mark E. Bamford 0 0 0 0 John S. Barakat 0 0 0 0 Barbara J. Basser-Bigio 0 0 0 0 Carl-Georg Bauer-Schlichtegroll Germany 0 0 0 0 David Baum 0 0 0 0 Patrick Y. Baune France 0 0 0 0 Robert A. Beckwitt 0 0 0 0 Jonathan A. Beinner 0 0 0 0 Ron E. Beller 0 0 0 0 Tarek M. Ben Halim Saudi Arabia 0 0 0 0 Kenneth Berents 0 0 0 0 Milton R. Berlinski The Netherlands 0 0 0 0 Andrew S. Berman 0 0 0 0 Frances R. Bermanzohn 0 0 0 0 Stuart N. Bernstein 0 0 0 0 Robert A. Berry UK 0 0 0 0 Jean-Luc Biamonti Monaco 0 0 0 0 James J. Birch UK 0 0 0 0 Lloyd C. Blankfein 0 0 0 0 David W. Blood 0 0 0 0 Randall A. Blumenthal 0 0 0 0 David R. Boles 0 0 0 0 Antonio Borges Portugal 0 0 0 0 Alison L. Bott UK 0 0 0 0 Charles W.A. Bott UK 0 0 0 0 Patrick C. Boyle 0 0 0 0
4 5
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Charles C. Bradford III 0 0 0 0 Benjamin S. Bram 0 0 0 0 Thomas C. Brasco 0 0 0 0 Daniel G. Brennan 0 0 0 0 Peter L. Briger, Jr. 0 0 0 0 Craig W. Broderick 0 0 0 0 Richard J. Bronks UK 0 0 0 0 Edward A. Brout 0 0 0 0 Charles K. Brown UK 0 0 0 0 James K. Brown 0 0 0 0 Peter D. Brundage 0 0 0 0 Sholom Bryski 0 0 0 0 John J. Bu 0 0 0 0 Lawrence R. Buchalter 0 0 0 0 Mark J. Buisseret UK 0 0 0 0 Steven M. Bunson 0 0 0 0 Timothy B. Bunting UK 0 0 0 0 Andrew J. Burke-Smith Canada 0 0 0 0 Calvert C. Burkhart 0 0 0 0 Michael S. Burton UK 0 0 0 0 George H. Butcher III 0 0 0 0 Mary D. Byron 0 0 0 0 Andrew Cader 0 0 0 0 Lawrence V. Calcano 0 0 0 0 Elizabeth V. Camp 0 0 0 0 John D. Campbell 0 0 0 0 Laurie G. Campbell Canada 0 0 0 0 Richard M. Campbell-Breeden UK 0 0 0 0 Carmine C. Capossela 0 0 0 0 Mark M. Carhart 0 0 0 0 Anthony H. Carpet 0 0 0 0 Michael J. Carr 0 0 0 0 Christopher J. Carrera 0 0 0 0 Virginia E. Carter 0 0 0 0 Calvin R. Carver, Jr. 0 0 0 0 Mary Ann Casati 0 0 0 0 Chris Casciato 0 0 0 0 Mark A. Castellano 0 0 0 0 Douglas W. Caterfino 0 0 0 0 Michael J. Certo 0 0 0 0 Varkki P. Chacko USA/India 0 0 0 0 David K. Chang Taiwan 0 0 0 0 Thomas P. Chang 0 0 0 0 Sacha A. Chiaramonte Germany 0 0 0 0 Andrew A. Chisholm Canada 0 0 0 0 Robert J. Christie 0 0 0 0 Todd J. Christie 0 0 0 0 Peter T. Cirenza 0 0 0 0 Kent A. Clark Canada 0 0 0 0 Maura J. Clark Canada 0 0 0 0 Zachariah Cobrinik 0 0 0 0
5 6
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Abby Joseph Cohen 0 0 0 0 Lawrence A. Cohen 200 0 200 0 Lawrence H. Cohen 0 0 0 0 Marc I. Cohen 0 0 0 0 Gary D. Cohn 0 0 0 0 Christopher A. Cole 0 0 0 0 Timothy J. Cole 0 0 0 0 Laura C. Conigliaro 0 0 0 0 Liam Connell 0 0 0 0 Thomas G. Connolly Ireland/USA 0 0 0 0 Frank T. Connor 0 0 0 0 Donna L. Conti 0 0 0 0 Karen R. Cook UK 0 0 0 0 Edith W. Cooper 0 0 0 0 Philip A. Cooper 0 0 0 0 Carlos A. Cordeiro 0 0 0 0 Henry Cornell 0 0 0 0 E. Gerald Corrigan 0 0 0 0 Jon S. Corzine 0 0 0 0 Claudio Costamagna Italy 0 0 0 0 James A. Coufos 0 0 0 0 Frank L. Coulson, Jr. 0 0 0 0 Kenneth Courtis 0 0 0 0 Randolph L. Cowen 0 0 0 0 Neil D. Crowder 0 0 0 0 Eduardo A. Cruz 0 0 0 0 John P. Curtin, Jr. 0 0 0 0 John W. Curtis 0 0 0 0 Stephen C. Daffron 0 0 0 0 John S. Daly Ireland 0 0 0 0 Philip M. Darivoff 0 0 0 0 Matthew S. Darnall 0 0 0 0 Timothy D. Dattels Canada 0 0 0 0 Gavyn Davies UK 0 0 0 0 Michael H. Davis 0 0 0 0 Michael G. De Lathauwer Belgium 0 0 0 0 David A. Dechman 0 0 0 0 Mark Dehnert 0 0 0 0 Paul C. Deighton UK 0 0 0 0 James Del Favero Australia 0 0 0 0 Juan A. Del Rivero Spain 0 0 0 0 Robert V. Delaney, Jr. 0 0 0 0 Joseph Della Rosa 0 0 0 0 Emanuel Derman 0 0 0 0 Neil V. DeSena 0 0 0 0 Martin R. Devenish UK 0 0 0 0 Andrew C. Devenport UK 0 0 0 0 Stephen D. Dias UK 0 0 0 0 Armando A. Diaz 0 0 0 0 Alexander C. Dibelius Germany 0 0 0 0 Stephen J. DiLascio 0 0 0 0
6 7
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Paul M. DiNardo 0 0 0 0 Simon P. Dingemans UK 0 0 0 0 Sandra D'Italia 0 0 0 0 Michele I. Docharty 0 0 0 0 Paula A. Dominick 0 0 0 0 Noel B. Donohoe Ireland 0 0 0 0 Jana Hale Doty 0 0 0 0 Robert G. Doumar, Jr. 0 0 0 0 Thomas M. Dowling 0 0 0 0 John O. Downing 0 0 0 0 Gerard Dreyer 0 0 0 0 Michael B. Dubno 0 0 0 0 Connie K. Duckworth 0 0 0 0 William C. Dudley 0 0 0 0 Brian J. Duffy 0 0 0 0 Matthieu B. Duncan 0 0 0 0 C. Steven Duncker 0 0 0 0 Karlo J. Duvnjak Canada 0 0 0 0 Jay S. Dweck 0 0 0 0 Gordon E. Dyal 0 0 0 0 Isabelle Ealet France 0 0 0 0 Glenn P. Earle UK 0 0 0 0 Seaborn S. Eastland 0 0 0 0 Paul S. Efron 0 0 0 0 Herbert E. Ehlers 0 0 0 0 Alexander S. Ehrlich 0 0 0 0 John E. Eisenberg 0 0 0 0 Gary L. Eisenreich 0 0 0 0 Edward K. Eisler Austria 0 0 0 0 Jason H. Ekaireb UK 0 0 0 0 Glenn D. Engel 0 0 0 0 Davide G. Erro Italy 0 0 0 0 Michael P. Esposito 0 0 0 0 George C. Estey Canada 0 0 0 0 Mark D. Ettenger 0 0 0 0 Bruce J. Evans 0 0 0 0 J. Michael Evans Canada 0 0 0 0 W. Mark Evans Canada 0 0 0 0 Charles P. Eve UK 0 0 0 0 Brian F. Farr 0 0 0 0 Elizabeth C. Fascitelli 0 0 0 0 Jeffrey F. Fastov 0 0 0 0 Pieter Maarten Feenstra The Netherlands 0 0 0 0 Steven M. Feldman 0 0 0 0 Laurie R. Ferber 0 0 0 0 Robert P. Fisher, Jr. 0 0 0 0 Lawton W. Fitt 0 0 0 0 Stephen C. Fitzgerald Australia 0 0 0 0 Thomas M. Fitzgerald III 0 0 0 0
7 8
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Daniel M. Fitzpatrick 0 0 0 0 James A. Fitzpatrick 0 0 0 0 David N. Fleischer 0 0 0 0 David B. Ford 0 0 0 0 Edward C. Forst 0 0 0 0 George B. Foussianes 0 0 0 0 Oliver L. Frankel 0 0 0 0 Randy W. Frankel 0 0 0 0 Matthew T. Fremont-Smith 0 0 0 0 Christopher G. French UK 0 0 0 0 Richard A. Friedman 0 0 0 0 Matthias K. Frisch Switzerland 0 0 0 0 C. Douglas Fuge 0 0 0 0 Shirley Fung UK 0 0 0 0 Joseph D. Gatto 0 0 0 0 Emmanuel Gavaudan France 0 0 0 0 Nicholas J. Gaynor UK 0 0 0 0 Eduardo B. Gentil 0 0 0 0 Peter C. Gerhard 0 0 0 0 Nomi P. Ghez Israel/USA 0 0 0 0 Scott A. Gieselman 0 0 0 0 H. John Gilbertson, Jr. 0 0 0 0 Joseph H. Gleberman 0 0 0 0 Richard J. Gnodde Ireland/South 0 0 0 0 Africa Charles G. Goetz 0 0 0 0 Jeffrey B. Goldenberg 0 2,860(7) 0 2,860(7) Jacob D. Goldfield 0 0 0 0 Gary F. Goldring 0 0 0 0 James S. Golob 0 0 0 0 Amy O. Goodfriend 0 0 0 0 Jay S. Goodgold 0 0 0 0 Andrew M. Gordon 0 0 0 0 Anthony J. Gordon 0 0 0 0 Robert D. Gottlieb 0 0 0 0 Frank J. Governali 0 0 0 0 Lorenzo Grabau Italy 0 0 0 0 Geoffrey T. Grant 0 0 0 0 William M. Grathwohl 0 0 0 0 Thomas J. Gravina 200 0 200 0 David J. Greenwald 0 0 0 0 Louis S. Greig UK 0 0 0 0 Peter W. Grieve 0 0 0 0 Christopher Grigg UK 0 0 0 0 Douglas C. Grip 0 0 0 0 Eric P. Grubman 0 0 0 0 Celeste A. Guth 0 0 0 0
- ------------------ (7) Shared with family members. 8 9
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Edward S. Gutman 0 0 0 0 Joseph D. Gutman 0 0 0 0 Erol Hakanoglu Turkey 0 0 0 0 Roger C. Harper 0 0 0 0 Charles T. Harris III 0 0 0 0 Robert S. Harrison 0 0 0 0 Shelley A. Hartman 0 0 0 0 Paul R. Harvey 0 0 0 0 Arthur J. Hass 0 0 0 0 Nobumichi Hattori Japan 0 0 0 0 Stephen J. Hay UK 0 0 0 0 Walter H. Haydock 0 0 0 0 Isabelle Hayen Belgium 0 0 0 0 Keith L. Hayes UK 0 0 0 0 Thomas J. Healey 0 0 0 0 John P. Heanue 0 0 0 0 Robert C. Heathcote UK 0 0 0 0 Sylvain M. Hefes France 0 0 0 0 David B. Heller 0 0 0 0 Steven M. Heller 0 0 0 0 R. Douglas Henderson 0 0 0 0 David L. Henle 0 0 0 0 Mary C. Henry 0 0 0 0 Raimund W. Herden Germany 0 0 0 0 Carl H. Hewitt 0 1000(8) 0 1000(8) Bruce A. Heyman 0 0 0 0 Robert E. Higgins 0 0 0 0 Joanne M. Hill 0 0 0 0 M. Roch Hillenbrand 0 0 0 0 Maykin Ho 0 0 0 0 Timothy E. Hodgson Canada 0 0 0 0 Jacquelyn M. Hoffman-Zehner Canada 0 0 0 0 Richard R. Hogan 0 0 0 0 Christopher G. Hogg New Zealand/USA 0 0 0 0 Daniel E. Holland III 0 0 0 0 Teresa E. Holliday 0 0 0 0 Gregory T. Hoogkamp 0 0 0 0 Thomas J. Hopkins 0 0 0 0 Robert D. Hormats 0 0 0 0 Robert G. Hottensen, Jr. 0 0 0 0 Michael R. Housden UK 0 0 0 0 Paul J. Huchro 0 0 0 0 James A. Hudis 0 0 0 0 Terry P. Hughes Ireland 0 0 0 0 Bimaljit S. Hundal UK 0 0 0 0 Edith A. Hunt 0 0 0 0 Susan J. Hunt UK 0 0 0 0
- ------------------ (8) Shared with family members. 9 10
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Fern Hurst 0 0 0 0 Robert J. Hurst 0 0 0 0 Toni Infante 0 0 0 0 Francis J. Ingrassia 0 0 0 0 Timothy J. Ingrassia 0 0 0 0 Masahiro Iwano Japan 0 0 0 0 Raymond J. Iwanowski 0 0 0 0 William L. Jacob III 0 0 0 0 Mark M. Jacobs 0 0 0 0 Richard I. Jaffee 0 0 0 0 Reuben Jeffery III 0 0 0 0 Stefan J. Jentzsch Germany 0 0 0 0 Dan H. Jester 0 0 0 0 Daniel J. Jick 0 0 0 0 Robert H. Jolliffe UK 0 0 0 0 Andrew J. Jonas 0 0 0 0 Robert C. Jones 0 0 0 0 Chansoo Joung 0 0 0 0 Andrew J. Kaiser 0 0 0 0 Fred J. Kambeitz 0 0 0 0 Ann F. Kaplan 21 0 21 0 Barry A. Kaplan 0 0 0 0 David A. Kaplan 0 0 0 0 Jason S. Kaplan 0 0 0 0 Robert S. Kaplan 0 0 0 0 Scott B. Kapnick 0 0 0 0 Erland S. Karlsson Sweden 0 0 0 0 James M. Karp 0 0 0 0 Richard Katz 0 0 0 0 Robert J. Katz 0 0 0 0 Sofia Katzap 0 0 0 0 David K. Kaugher 0 0 0 0 Tetsuya Kawano Japan 0 0 0 0 R. Mark Keating 0 0 0 0 Peter R. Kellogg 0 0 0 0 John L. Kelly 0 0 0 0 Kevin W. Kennedy 0 0 0 0 William J. Kenney 0 0 0 0 Thomas J. Kenny 0 0 0 0 Lawrence S. Keusch 0 0 0 0 Rustom N. Khandalavala 0 0 0 0 Peter A. Kiernan U.K. 0 0 0 0 Peter D. Kiernan III 0 0 0 0 James T. Kiernan, Jr. 0 0 0 0 Sun Bae Kim Canada 0 0 0 0 Douglas W. Kimmelman 0 0 0 0 Colin E. King Canada 0 0 0 0 Robert C. King, Jr. 0 0 0 0 Adrian P. Kingshott UK 0 0 0 0 Timothy M. Kingston 0 0 0 0 Lincoln Kinnicutt 0 0 0 0
10 11
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Ewan M. Kirk UK 0 0 0 0 Daniel H. Klebes II 0 0 0 0 Michael K. Klingher 0 0 0 0 Craig A. Kloner 0 0 0 0 Jonathan R. Knight UK 0 0 0 0 Bradford C. Koenig 0 0 0 0 Mark J. Kogan 0 0 0 0 Stanley Kogelman 0 0 0 0 Jonathan L. Kolatch 0 0 0 0 Richard E. Kolman 0 0 0 0 Philip J. Kopp III 0 0 0 0 David J. Kostin 0 0 0 0 Koji Kotaka Japan 0 0 0 0 Peter S. Kraus 0 15(9) 0 15(9) Lawrence Kutscher 0 0 0 0 Christoph M. Ladanyi Austria 0 0 0 0 Peggy A. Lamb 0 0 0 0 David G. Lambert 0 0 0 0 Thomas K. Lane 0 0 0 0 Bruce M. Larson 0 0 0 0 Thomas D. Lasersohn 0 0 0 0 Anthony D. Lauto 0 0 0 0 John J. Lauto 0 0 0 0 Matthew Lavicka 0 0 0 0 David N. Lawrence 0 0 0 0 Peter Layton 0 0 0 0 Susan R. Leadem 0 0 0 0 Andrew D. Learoyd UK 0 0 0 0 Chang-Ho J. Lee USA/South Korea 0 0 0 0 Donald C. Lee 0 0 0 0 Kenneth H. M. Leet 0 0 0 0 Anthony J. Leitner 0 0 0 0 Paulo C. Leme 0 0 0 0 Hughes B. Lepic France 0 0 0 0 Alan B. Levande 0 0 0 0 Stephen M. Levick 0 0 0 0 Ronald S. Levin 0 0 0 0 Jack Levy 0 0 0 0 Thomas B. Lewis, Jr. 0 0 0 0 Mark E. Leydecker 0 0 0 0 Matthew G. L'Heureux 0 0 0 0 Gwen R. Libstag 0 0 0 0 Stephen C. Lichtenauer 0 0 0 0 Roger A. Liddell UK 0 0 0 0 Richard J. Lieb 0 0 0 0 Mitchell J. Lieberman 0 0 0 0 Syaru Shirley Lin 0 0 0 0
- ------------------ (9) Shared with family members. 11 12
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Josephine Linden UK 0 0 0 0 Lawrence H. Linden 0 0 0 0 Robert Litterman 0 0 0 0 Robert H. Litzenberger 0 0 0 0 David McD A. Livingstone Australia 0 0 0 0 Douglas F. Londal 0 0 0 0 Jacques M. Longerstaey USA/Belgium 0 0 0 0 Jonathan M. Lopatin 0 0 0 0 Francisco Lopez-Balboa 0 0 0 0 Victor M. Lopez-Balboa 0 0 0 0 Antigone Loudiadis UK 0 0 0 0 Robert W. Luckow 0 0 0 0 C. Richard Lucy 0 0 0 0 Michael C. Luethke 0 0 0 0 Kevin L. Lundeen 0 0 0 0 Michael R. Lynch 0 0 0 0 Shogo Maeda Japan 0 0 0 0 John A. Mahoney 0 0 0 0 Sean O. Mahoney 0 0 0 0 Russell E. Makowsky 0 0 0 0 Peter G. C. Mallinson UK 0 0 0 0 Kathleen M. Maloney 0 0 0 0 Charles G. R. Manby UK 0 0 0 0 Robert S. Mancini 0 0 0 0 Barry A. Mannis 0 0 0 0 Arthur S. Margulis, Jr. 0 0 0 0 Jorge O. Mariscal Mexico 0 0 0 0 Richard J. Markowitz 0 0 0 0 Ronald G. Marks 0 0 0 0 Robert J. Markwick UK 0 0 0 0 Nicolas I. Marovich 0 0 0 0 Eff W. Martin 0 0 0 0 Jacques Martin Canada 0 0 0 0 John J. Masterson 0 0 0 0 David J. Mastrocola 0 0 0 0 Kathy M. Matsui 0 0 0 0 Tadanori Matsumura Japan 0 0 0 0 Heinz Thomas Mayer Germany 0 0 0 0 Thomas J. McAdam 0 0 0 0 Richard F. McArdle 0 0 0 0 Theresa E. McCabe 0 0 0 0 Joseph M. McConnell 0 0 0 0 Mark E. McGoldrick 0 0 0 0 Joseph P. McGrath, Jr. 0 0 0 0 Stephen J. McGuinness 0 0 0 0 John C. McIntire 0 0 0 0 John W. McMahon 0 0 0 0 Geraldine F. McManus 0 0 0 0 Richard P. McNeil Jamaica 0 0 0 0 Audrey A. McNiff 0 0 0 0 Anne Welsh McNulty 0 0 0 0
12 13
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- John P. McNulty 0 0 0 0 E. Scott Mead 0 0 0 0 David M. Meerschwam The Netherlands 0 0 0 0 Sanjeev K. Mehra India 0 0 0 0 Michael C. Melignano 0 0 0 0 Roberto Mendoza 0 0 0 0 Amos Meron USA/Israel 0 0 0 0 T. Willem Mesdag 0 0 0 0 Andrew L. Metcalfe UK 0 0 0 0 Michael R. Miele 0 0 0 0 Lowell J. Millar 0 0 0 0 Gunnar T. Miller 0 0 0 0 Kenneth A. Miller 0 0 0 0 Therese L. Miller 0 0 0 0 James E. Milligan 0 0 0 0 Eric M. Mindich 0 0 0 0 Peter A. Mindnich 0 0 0 0 John J. Minio 0 0 0 0 Edward S. Misrahi Italy 0 0 0 0 Steven T. Mnuchin 0 0 0 0 Kurt C. Mobley 0 0 0 0 Masanori Mochida Japan 0 0 0 0 Karsten N. Moller Denmark 0 0 0 0 Thomas K. Montag 0 0 0 0 William C. Montgomery 0 0 0 0 Wayne L. Moore 0 0 0 0 Yukihiro Moroe Japan 0 0 0 0 Robert B. Morris III 0 0 0 0 Michael P. Mortara 0 0 0 0 Jennifer Moses 0 0 0 0 Jeffrey M. Moslow 0 0 0 0 Sharmin Mossavar-Rahmani UK 0 0 0 0 Gregory T. Mount 0 0 0 0 Ian Mukherjee UK 0 0 0 0 Edward A. Mule 0 0 0 0 Timothy R. Mullen 0 0 0 0 Eric D. Mullins 0 0 0 0 Donald J. Mulvihill 0 0 0 0 Patrick E. Mulvihill Ireland 0 0 0 0 Richard A. Murley UK 0 0 0 0 Philip D. Murphy 43 0 43 0 Raymond T. Murphy 0 0 0 0 Thomas S. Murphy, Jr. 0 0 0 0 Gaetano J. Muzio 0 0 0 0 Michiya Nagai Japan 0 0 0 0 Gabrielle U. Napolitano 0 0 0 0 Avi M. Nash 0 0 0 0 Trevor P. Nash UK 0 0 0 0 Warwick M. Negus Australia 0 0 0 0 Daniel M. Neidich 22 0 22 0
13 14
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Kipp M. Nelson 0 0 0 0 Robin Neustein 0 0 0 0 Duncan L. Niederauer 0 0 0 0 Susan M. Noble UK 0 0 0 0 Suok J. Noh 0 0 0 0 Suzanne M. Nora Johnson 0 0 0 0 Christopher K. Norton 0 0 0 0 Michael E. Novogratz 0 0 0 0 Jay S. Nydick 0 0 0 0 Katherine K. Oakley 0 0 0 0 Alok Oberoi India 0 0 0 0 David Ogens 0 0 0 0 Jinsuk T. Oh South Korea 0 0 0 0 John C. O'Hara 0 0 0 0 Terence J. O'Neill UK 0 0 0 0 Timothy J. O'Neill 0 0 0 0 Richard T. Ong Malaysia 0 0 0 0 Ronald M. Ongaro 0 0 0 0 Donald C. Opatrny, Jr. 0 0 0 0 Daniel B. O'Rourke 0 0 0 0 Robert J. O'Shea 0 0 0 0 Joel D. Ospa 0 0 0 0 Greg M. Ostroff 0 0 0 0 Terence M. O'Toole 0 0 0 0 Robert J. Pace 0 0 0 0 Robert N. Packer 0 0 0 0 Gregory K. Palm 0 0 0 0 Bryant F. Pantano 0 0 0 0 Mukesh K. Parekh 0 0 0 0 Geoffrey M. Parker 0 0 0 0 Melissa B. Patrusky 0 0 0 0 Henry M. Paulson, Jr. 0 0 0 0 William G. Peskoff 0 0 0 0 David B. Philip 0 0 0 0 Paul A. Phillips 0 0 0 0 Alberto M. Piedra, Jr. 0 0 0 0 Stephen R. Pierce 0 0 0 0 Philip J. Pifer 0 0 0 0 Scott M. Pinkus 0 0 0 0 Timothy C. Plaut Germany 0 0 0 0 Andrea Ponti Italy/USA 0 0 0 0 Ellen R. Porges 0 0 0 0 Wiet H. M. Pot The Netherlands 0 0 0 0 Michael J. Poulter UK 0 0 0 0 John J. Powers 0 0 0 0 Richard H. Powers 0 0 0 0 Michael A. Price 0 0 0 0 Scott Prince 0 0 0 0 Nomi M. Prins 0 0 0 0 Goran V. Puljic 0 0 0 0
14 15
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Alok Puri UK 0 0 0 0 Kevin A. Quinn 0 0 0 0 Stephen D. Quinn 0 0 0 0 John J. Rafter Ireland 0 0 0 0 Jonathan Raleigh 0 0 0 0 Dioscoro-Roy I. Ramos Phillippines 0 0 0 0 Gregory G. Randolph 0 0 0 0 Charlotte P. Ransom UK 0 0 0 0 Michael G. Rantz 0 0 0 0 Joseph Ravitch 0 0 0 0 Girish V. Reddy 0 0 0 0 Arthur J. Reimers III 0 0 0 0 Anthony John Reizenstein UK 0 0 0 0 James P. Riley, Jr. 0 0 0 0 Kimberly E. Ritrievi 0 0 0 0 John S. Rizner 0 0 0 0 Simon M. Robertson UK 0 0 0 0 J. David Rogers 0 0 0 0 John F. W. Rogers 0 0 0 0 Emmanuel Roman France 0 0 0 0 Eileen P. Rominger 0 0 0 0 Pamela P. Root 0 0 0 0 Ralph F. Rosenberg 0 0 0 0 Jacob D. Rosengarten 0 0 0 0 Richard J. Rosenstein 0 0 0 0 Ivan Ross 0 0 0 0 Stuart M. Rothenberg 0 0 0 0 Stuart R. Rubenstein 0 0 0 0 Michael S. Rubinoff 0 0 0 0 Ernest H. Ruehl, Jr. 0 0 0 0 Paul M. Russo 0 0 0 0 Richard M. Ruzika 0 0 0 0 Jeri Lynn Ryan 0 0 0 0 John C. Ryan 0 0 0 0 Michael D. Ryan 0 0 0 0 Katsunori Sago Japan 0 0 0 0 Pablo J. Salame Ecuador 0 0 0 0 Richard C. Salvadore 0 0 0 0 J. Michael Sanders 0 0 0 0 Allen Sangines-Krause Mexico 0 0 0 0 Richard A. Sapp 0 0 0 0 Joseph Sassoon Israel 0 0 0 0 Tsutomu Sato Japan 240 0 240 0 Muneer A. Satter 0 0 0 0 Jonathan S. Savitz 0 0 0 0 Peter Savitz 0 0 0 0 Robert Schaefer 0 0 0 0 Paul S. Schapira Italy 0 0 0 0 P. Sheridan Schechner 1,000 0 1,000 0 Gary B. Schermerhorn 0 0 0 0
15 16
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Mitchell I. Scherzer Canada 0 0 0 0 Peter Schiefer Germany 0 0 0 0 Howard B. Schiller 0 0 0 0 Norman R. Schlanger 0 0 0 0 Jeffrey W. Schroeder 0 0 0 0 Antoine Schwartz France 0 0 0 0 Eric S. Schwartz 0 0 0 0 Harvey M. Schwartz 0 0 0 0 Mark Schwartz 0 0 0 0 Patrick P. Scire 0 0 0 0 Steven M. Scopellite 0 0 0 0 David J. Scudellari 0 0 0 0 Charles B. Seelig, Jr. 0 0 0 0 Karen D. Seitz 0 0 0 0 Randolph Sesson, Jr. 0 0 0 0 Steven M. Shafran 0 0 0 0 Richard S. Sharp UK 0 0 0 0 John P. Shaughnessy 0 0 0 0 Mary Beth Shea 0 0 0 0 Robert J. Shea, Jr. 0 0 0 0 James M. Sheridan 0 0 0 0 Richard G. Sherlund 0 0 0 0 Michael S. Sherwood UK 0 0 0 0 Michael H. Siegel 0 0 0 0 Harvey Silverman 0 0 0 0 Howard A. Silverstein 0 0 0 0 Richard P. Simon 0 0 0 0 Victor R. Simone, Jr. 0 0 0 0 Dinakar Singh 0 0 0 0 Ravi M. Singh 0 0 0 0 Ravi Sinha India/USA 0 0 0 0 Allen W. Sinsheimer 0 0 0 0 Edward M. Siskind 0 0 0 0 Christian J. Siva-Jothy UK 0 0 0 0 Mark F. Slaughter 0 0 0 0 Linda J. Slotnick 0 0 0 0 Cody J Smith 0 0 0 0 Derek S. Smith 0 0 0 0 Michael M. Smith 0 0 0 0 Sarah E. Smith UK 0 0 0 0 Trevor A. Smith UK 0 0 0 0 Randolph C. Snook 0 0 0 0 Jonathan S. Sobel 0 0 0 0 David M. Solomon 0 0 0 0 Judah C. Sommer 0 0 0 0 Theodore T. Sotir 0 0 0 0 Daniel L. Sparks 0 0 0 0 Marc A. Spilker 0 0 0 0 Daniel W. Stanton 0 0 0 0 Steven R. Starker 0 0 0 0 Esta E. Stecher 0 0 0 0
16 17
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Cathrine S. Steck 0 0 0 0 Fredric E. Steck 0 0 0 0 Robert K. Steel 0 0 0 0 Stuart L. Sternberg 0 0 0 0 Joseph P. Stevens 0 0 0 0 Raymond S. Stolz 0 0 0 0 Steven H. Strongin 0 0 0 0 Andrew J. Stuart Australia 0 0 0 0 Todd A. Stuart 0 0 0 0 Patrick Sullivan 0 0 0 0 Hsueh J. Sung Taiwan 0 0 0 0 George M. Suspanic Spain 0 0 0 0 Peter D. Sutherland S.C. Ireland 0 0 0 0 Andrew M. Swinburne UK 0 0 0 0 Gene T. Sykes 0 0 0 0 Shahriar Tadjbakhsh 0 0 0 0 Ronald K. Tanemura UK/USA 0 0 0 0 John H. Taylor 0 0 0 0 Robert E. Taylor 0 0 0 0 Greg W. Tebbe 0 0 0 0 Kiyotaka Teranishi Japan 0 0 0 0 Mark R. Tercek 0 0 0 0 Donald F. Textor 0 0 0 0 John A. Thain 0 0 0 0 Alfred Thomas 0 0 0 0 Darren S. Thompson 0 0 0 0 John L. Thornton 0 0 0 0 Rory T. Tobin Ireland 0 0 0 0 Daisuke Toki Japan 0 0 0 0 Gary S. Tolchin 0 0 0 0 Massimo Tononi Italy 0 0 0 0 Brian J. Toolan 0 0 0 0 John R. Tormondsen 0 0 0 0 Leslie C. Tortora 0 0 0 0 John L. Townsend III 0 0 0 0 Mark J. Tracey UK 0 0 0 0 Lawrence F. Trainor 0 0 0 0 Stephen S. Trevor 0 0 0 0 Byron D. Trott 0 0 0 0 Michael A. Troy 0 0 0 0 Donald J. Truesdale 0 0 0 0 Robert B. Tudor III 0 0 0 0 Thomas E. Tuft 0 0 0 0 John Tumilty UK 0 0 0 0 Barry S. Turkanis 0 0 0 0 Malcolm B. Turnbull Australia 554 0 554 0 Christopher H. Turner 0 0 0 0 Thomas B. Tyree, Jr. 0 0 0 0 Harkanwar Uberoi India 0 0 0 0 Kaysie P. Uniacke 0 0 0 0
17 18
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- John E. Urban 0 0 0 0 Hugo H. Van Vredenburch The Netherlands 0 0 0 0 Lee G. Vance 0 0 0 0 Corrado P. Varoli Canada 0 0 0 0 George F. Varsam 0 0 0 0 John J. Vaske 0 0 0 0 David A. Viniar 0 0 0 0 Barry S. Volpert 0 0 0 0 George H. Walker IV 0 0 0 0 Thomas B. Walker III 0 0 0 0 Berent A. Wallendahl Norway 0 0 0 0 David R. Walton UK 0 0 0 0 Hsueh-Ming Wang 0 0 0 0 Patrick J. Ward 0 0 0 0 Haruko Watanuki Japan 0 0 0 0 Edward F. Watts, Jr. 0 190(10) 0 190(10) David M. Weil 0 0 0 0 Frank Weinberg III 0 0 0 0 John S. Weinberg 0 0 0 0 Peter A. Weinberg 0 0 0 0 Helge Weiner-Trapness Sweden 0 0 0 0 Mark S. Weiss 0 0 0 0 George W. Wellde, Jr. 0 0 0 0 Lance N. West 0 0 0 0 Matthew Westerman UK 0 0 0 0 Peter Wheeler UK 0 0 0 0 Barbara A. White 0 0 0 0 A. Carver Wickman 0 0 0 0 Susan A. Willetts 0 0 0 0 Anthony G. Williams UK 0 0 0 0 Christopher G. Williams UK 0 0 0 0 Gary W. Williams 0 0 0 0 Thomas F. Williams 0 0 0 0 Todd A. Williams 0 0 0 0 John S. Willian 0 0 0 0 Kenneth W. Willman 0 0 0 0 Kevin D. Willsey 0 0 0 0 Andrew F. Wilson New Zealand 0 0 0 0 Kendrick R. Wilson III 0 0 0 0 Jon Winkelried 0 0 0 0 Steven J. Wisch 0 0 0 0 Michael S. Wishart 0 0 0 0 Richard E. Witten 0 0 0 0 William H. Wolf, Jr. 0 0 0 0 Tracy R. Wolstencroft 0 0 0 0 Zi Wang Xu Canada/China 0 0 0 0 (PRC) Richard A. Yacenda 0 0 0 0 Tetsufumi Yamakawa Japan 0 0 0 0
- ------------------ (10) Shared with family members. 18 19
ITEM 8 ITEM 9 ITEM 6 ITEM 7 SHARED SOLE ITEM 10 CITIZENSHIP SOLE VOTING VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Yasuyo Yamazaki Japan 11 0 11 0 Anne Yang 0 0 0 0 Xiang-Dong Yang China (PRC) 0 0 0 0 Danny O. Yee 0 0 0 0 Jaime E. Yordan 0 0 0 0 W. Thomas York, Jr. 0 0 0 0 Paul M. Young 0 0 0 0 Richard M. Young 0 0 0 0 Bryant M. Yunker, Jr. 0 0 0 0 Michael J. Zamkow 0 20(11) 0 20(11) Paolo Zannoni Italy 0 0 0 0 Yoel Zaoui France 0 0 0 0 Gregory H. Zehner 0 0 0 0 Jide J. Zeitlin 0 0 0 0 Alphonse Zenna 0 0 0 0 Joan H. Zief 0 0 0 0 Joseph R. Zimmel 0 0 0 0 James P. Ziperski 0 0 0 0 Barry L. Zubrow 0 0 0 0 Mark A. Zurack 0 0 0 0 Shares held by 88 private N/A 0 1,420,105 0 1,420,105 charitable foundations established by 88 Covered Persons each of whom is a co-trustee of one or more of such private charitable foundations(12)
- ------------------ (11) Shared with family members. (12) Each Covered Person disclaims beneficial ownership of all such shares of Common Stock. 19 20
ITEM 8 ITEM 9 PLACE OF ITEM 7 SHARED SOLE ITEM 10 ORGANIZATION SOLE VOTING VOTING DISPOSITIVE SHARED (NEW YORK POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- TRUSTS 120 Broadway Partners New Jersey 0 0 0 0 2000 Carlos A. Cordeiro Grantor Retained Annuity Trust 0 0 0 0 2000 Danny O. Yee Grantor Retained Annuity Trust 0 0 0 0 2000 Douglas W. Kimmelman Grantor Retained Annuity Trust 0 0 0 0 2000 Girish V. Reddy Grantor Retained Annuity Trust 0 0 0 0 2000 James M. Sheridan Grantor Retained Annuity Trust 0 0 0 0 2000 John A. Thain Grantor Retained Annuity Trust 0 0 0 0 2000 Kipp M. Nelson Grantor Retained Annuity Trust 0 0 0 0 2000 Mary Ann Casati Grantor Retained Annuity Trust 0 0 0 0 2000 Michael E. Novogratz Grantor Retained Annuity Trust 0 0 0 0 2000 Scott S. Prince Grantor Retained Annuity Trust 0 0 0 0 The Abby Joseph Cohen 2000 Annuity Trust I 0 0 0 0 The Abby Joseph Cohen 2000 Family Trust 0 0 0 0 A.C. Trust 0 0 0 0 The Adina R. Lopatin 2000 Trust 0 0 0 0 The Alexander H. Witten 2000 Trust 0 0 0 0 The Alexander I. Berlinski 2000 Trust 0 0 0 0 The Alexander Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0 The Alexander Litzenberger Remainder Trust 0 0 0 0 The Alexandra D. Steel 2000 Trust 0 0 0 0 The Alexis Blood 2000 Trust 0 0 0 0 The Alyssa Blood 2000 Trust 0 0 0 0 The Amanda Liann Mead 2000 Trust 0 0 0 0 Anahue Trust Jersey 0 0 0 0 Andrew L. Fippinger-Millennium Trust 0 0 0 0 The Andrew M Alper 2000 Annuity Trust I 0 0 0 0
20 21
ITEM 6 ITEM 8 ITEM 9 PLACE OF ITEM 7 SHARED SOLE ITEM 10 ORGANIZATION SOLE VOTING VOTING DISPOSITIVE SHARED (NEW YORK POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- The Andrew M. Gordon 2000 Family Trust 0 0 0 0 Ann F. Kaplan Two Year Trust Dated June 2000 0 0 0 0 The Anne R. Witten 2000 Trust 0 0 0 0 The Anne Sullivan Wellde 2000 Trust 0 0 0 0 The Anthony D. Lauto 2000 Annuity Trust I 0 0 0 0 The Anthony D. Lauto 2000 Family Trust 0 0 0 0 The Arthur J. Reimers, III Defective Trust 2000 Connecticut 0 0 0 0 Arthur J. Reimers, III Grantor Retained Annuity Trust 2000 Connecticut 0 0 0 0 The Avi M. Nash 2000 Annuity Trust I 0 0 0 0 The Avi M. Nash 2000 Family Trust 0 0 0 0 The Bari Marissa Schwartz 2000 Trust 0 0 0 0 Barry A. Kaplan 2000 Family Trust 0 0 0 0 Barry A. Kaplan 2000 GRAT 0 0 0 0 The Barry L. Zubrow 2000 Annuity Trust I 0 0 0 0 The Barry L. Zubrow 2000 Family Trust 0 0 0 0 The Benjamin H. Sherlund 2000 Trust 0 0 0 0 The Benjamin Kraus 2000 Trust 0 0 0 0 The Bradley Abelow Family 2000 Trust 0 0 0 0 The Caceres Novogratz Family Trust 0 0 0 0 The Carlos A. Cordeiro Trust 0 0 0 0 The Charlotte Steel 2000 Trust 0 0 0 0 The Charlotte Textor 2000 Trust 0 0 0 0 The Christopher A. Cole 2000 Annuity Trust I 0 0 0 0 The Christopher A. Cole 2000 Family Trust 0 0 0 0 The Christopher K. Norton 2000 Family Trust 0 0 0 0 The Christopher Palmisano 2000 Grantor Retained Annuity Trust 0 0 0 0 The Christopher Palmisano Remainder Trust 0 0 0 0 The Christopher Ryan Tortora 2000 Trust 0 0 0 0
21 22
ITEM 6 ITEM 8 ITEM 9 PLACE OF ITEM 7 SHARED SOLE ITEM 10 ORGANIZATION SOLE VOTING VOTING DISPOSITIVE SHARED (NEW YORK POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- The Cody J Smith 2000 Annuity Trust I 0 0 0 0 The Cody J Smith 2000 Family Trust 0 0 0 0 The Connie K. Duckworth 2000 Annuity Trust I 0 0 0 0 The Connie K. Duckworth 2000 Family Trust 0 0 0 0 The Constance A. Haydock 2000 Trust 0 0 0 0 The Daniel Alexander Schwartz 2000 Trust 0 0 0 0 The Daniel M. Neidich 2000 Annuity Trust I 0 0 0 0 The Daniel W. Stanton 2000 Annuity Trust I 0 0 0 0 The Daniel W. Stanton, II 2000 Trust 0 0 0 0 The Danny O. Yee Trust 0 0 0 0 The David B. Ford 2000 Annuity Trust DTD as of 6/16/2000 Pennsylvania 0 0 0 0 The David B. Heller 2000 Annuity Trust I 0 0 0 0 The David B. Heller 2000 Family Trust 0 0 0 0 The David G. Lambert 2000 Annuity Trust I 0 0 0 0 The David G. Lambert 2000 Family Trust 0 0 0 0 The David L. Henle 2000 Annuity Trust I 0 0 0 0 The David L. Henle 2000 Family Trust 0 0 0 0 The David M. Baum Family 2000 Trust New Jersey 0 0 0 0 The David Viniar 2000 Annuity Trust I 0 0 0 0 The David W. Blood 2000 Annuity Trust I 0 0 0 0 The Donald F. Textor 2000 Annuity Trust I 0 0 0 0 The Douglas W. Kimmelman Trust 0 0 0 0 The Eaddy Adele Kiernan 2000 Trust 0 0 0 0 The Edward C. Forst 2000 Annuity Trust I 0 0 0 0 The Edward C. Forst 2000 Family Trust 0 0 0 0 The Edward Scott Mead 2000 Annuity Trust I 0 0 0 0 Eff Warren Martin 2000 Childrens Trust California 0 0 0 0
22 23
ITEM 6 ITEM 8 ITEM 9 PLACE OF ITEM 7 SHARED SOLE ITEM 10 ORGANIZATION SOLE VOTING VOTING DISPOSITIVE SHARED (NEW YORK POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Eff Warren Martin 2000 Grantor Retained Annuity Trust California 0 0 0 0 The Elizabeth Anne Corrigan 2000 Trust 0 0 0 0 The Elizabeth H. Coulson 2000 Trust 0 0 0 0 The Elizabeth L. Heller 2000 Trust 0 0 0 0 The Elizabeth Lin Mead 2000 Trust 0 0 0 0 The Elizabeth M. Stanton 2000 Trust 0 0 0 0 The Elizabeth Steel 2000 Trust 0 0 0 0 The Ellie Dorit Neustein 2000 Trust 0 0 0 0 The Emily Austen Katz 2000 Trust 0 0 0 0 The Emily Stecher 2000 Trust 0 0 0 0 The Emma M.L. Mead 2000 Trust 0 0 0 0 The Eric Fithian 2000 Trust 0 0 0 0 The Erin Marie Tormondsen 2000 Trust 0 0 0 0 The Esta Eiger Stecher 2000 Annuity Trust I 0 0 0 0 The Francis J. Ingrassia 2000 Annuity Trust I 0 0 0 0 The Francis J. Ingrassia 2000 Family Trust 0 0 0 0 The Frank L. Coulson III 2000 Trust 0 0 0 0 The Fredric E. Steck 2000 Annuity Trust I 0 0 0 0 The Fredric E. Steck 2000 Family Trust 0 0 0 0 Gary D. Cohn 2000 Family Trust 0 0 0 0 Gary D. Cohn 2000 GRAT 0 0 0 0 The Geoffrey T. Grant 2000 Family Trust 0 0 0 0 The George H. Walker 2000 Annuity Trust I 0 0 0 0 The George H. Walker 2000 Family Trust 0 0 0 0 The George W. Wellde, Jr. 2000 Annuity Trust I 0 0 0 0 The George William Wellde, III 2000 Trust 0 0 0 0 Ghez 2000 GRAT 0 0 0 0 Ghez 2000 Non-GST-Exempt Trust 0 0 0 0 The Girish V. Reddy Trust 0 0 0 0 The Goldenberg 2000 Annuity Trust I 0 0 0 0 The Goldenberg 2000 Family Trust 0 0 0 0
23 24
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The Greg M. Ostroff 2000 Annuity Trust I 0 0 0 0 The Greg M. Ostroff 2000 Family Trust 0 0 0 0 The Gregory H. Zehner 2000 Annuity Trust I 0 0 0 0 The Gregory H. Zehner 2000 Family Trust 0 0 0 0 The Gregory K. Palm 2000 Annuity Trust I 0 0 0 0 The Gregory K. Palm 2000 Family Trust 0 0 0 0 The Guapulo Trust Jersey 0 0 0 0 The Howard A. Silverstein 2000 Annuity Trust I 0 0 0 0 The Howard A. Silverstein 2000 Family Trust 0 0 0 0 The Howard B. Schiller 2000 Annuity Trust I 0 0 0 0 The Isabelle M.L. Mead 2000 Trust 0 0 0 0 The J. David Rogers 2000 Annuity Trust I 0 0 0 0 The James Alexander Mead 2000 Trust 0 0 0 0 The James M. Sheridan Trust 0 0 0 0 The James Nicholas Katz 2000 Trust 0 0 0 0 James P. Riley, Jr. 2000 Family Trust 0 0 0 0 James P. Riley, Jr. 2000 GRAT 0 0 0 0 The Jason Kraus 2000 Trust 0 0 0 0 The Jason William Tortora 2000 Trust 0 0 0 0 The Jeffrey D. Witten 2000 Trust 0 0 0 0 The Jennifer Lauren Alper 2000 Trust 0 0 0 0 JG 2000 Trust 0 0 0 0 JG 2000 Trust (continuing trust) 0 0 0 0 The John A. Thain Trust 0 0 0 0 The John J. Powers 2000 Family Trust 0 0 0 0 The John L. Townsend, III 2000 Annuity Trust I 0 0 0 0 The John O. Downing 2000 Annuity Trust I 0 0 0 0 The John O. Downing 2000 Family Trust 0 0 0 0 The John P. Curtin, Jr. 2000 Annuity Trust I 0 0 0 0
24 25
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The John P. Curtin, Jr. 2000 Family Trust 0 0 0 0 The John R. Tormondsen 2000 Annuity Trust I 0 0 0 0 The John R. Tormondsen, Jr. 2000 Trust 0 0 0 0 The John S. Weinberg 2000 Annuity Trust I 0 0 0 0 The John S. Weinberg 2000 Family Trust 0 0 0 0 The Jonathan G. Neidich 2000 Trust 0 0 0 0 The Jonathan M. Lopatin 2000 Annuity Trust I 0 0 0 0 The Jordan Viniar 2000 Trust 0 0 0 0 The Joseph Della Rosa 2000 Annuity Trust I 0 0 0 0 The Joseph Della Rosa 2000 Family Trust 0 0 0 0 The Joseph H. Gleberman 2000 Annuity Trust I 0 0 0 0 The Joseph H. Gleberman 2000 Family Trust 0 0 0 0 The Karen Barlow Corrigan 2000 Trust 0 0 0 0 The Karen Rebecca Alper 2000 Trust 0 0 0 0 The Karsten Moller & Barbara Kahn-Moller Trust Jersey 0 0 0 0 The Katherine A.M. Stanton 2000 Trust 0 0 0 0 The Katheryn C. Coulson 2000 Trust 0 0 0 0 The Kathryn Margaret Wellde 2000 Trust 0 0 0 0 The Kelsey Fithian 2000 Trust 0 0 0 0 The Kenneth Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0 The Kenneth Litzenberger Remainder Trust 0 0 0 0 The Kevin W. Kennedy 2000 Annuity Trust I 0 0 0 0 The Kevin W. Kennedy 2000 Family Trust 0 0 0 0 The Kimberly Lynn Macaione 2000 Trust 0 0 0 0 The Kimberly R. Textor 2000 Trust 0 0 0 0 The Kipp M. Nelson Trust 0 0 0 0 The Kyle F. Textor 2000 Trust 0 0 0 0 The Lauren Schiller 2000 Trust 0 0 0 0
25 26
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The Lawrence R. Buchalter 2000 Annuity Trust I 0 0 0 0 The Lawrence R. Buchalter 2000 Family Trust 0 0 0 0 The Lee G. Vance 2000 Annuity Trust I 0 0 0 0 The Lee G. Vance 2000 Family Trust 0 0 0 0 The Leslie C. Tortora 2000 Annuity Trust I 0 0 0 0 Lloyd C. Blankfein 2000 Family Trust 0 0 0 0 Lloyd C. Blankfein 2000 GRAT 0 0 0 0 The Louise Rice Townsend 2000 Trust 0 0 0 0 M. Roch Hillenbrand Trust f/b/o C. Justin Hillenbrand New Jersey 0 0 0 0 M. Roch Hillenbrand Trust f/b/o Molly D. Hillenbrand New Jersey 0 0 0 0 The Mallory G. Neidich 2000 Trust 0 0 0 0 The Marc A. Spilker 2000 Family Trust 0 0 0 0 The Mark A. Zurack 2000 Annuity Trust I 0 0 0 0 The Mark A. Zurack 2000 Family Trust 0 0 0 0 The Mark A. Zurack 2000 Issue Trust 0 0 0 0 Mark Dehnert Living Trust Illinois 0 0 0 0 The Mark Schwartz 2000 Annuity Trust I 0 0 0 0 The Mark Tercek 2000 Annuity Trust I 0 0 0 0 The Mark Tercek 2000 Family Trust 0 0 0 0 Marks 2000 0 0 0 0 Marks 2000 (continuing trust) 0 0 0 0 The Mary Agnes Reilly Kiernan 2000 Trust 0 0 0 0 The Mary Ann Casati Trust 0 0 0 0 The Matthew D. Rogers 2000 Trust 0 0 0 0 The Matthew Peter Mortara 2000 Trust 0 0 0 0 The Maya Bettina Linden 2000 Trust 0 0 0 0 The Merritt Moore Townsend 2000 Trust 0 0 0 0 The Mesdag Family Trust Delaware 0 0 0 0
26 27
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The Michael A. Price 2000 Annuity Trust I 0 0 0 0 The Michael A. Price 2000 Family Trust 0 0 0 0 The Michael D. Ryan 2000 Annuity Trust I 0 0 0 0 The Michael D. Ryan 2000 Family Trust 0 0 0 0 The Michael J. Zamkow 2000 Annuity Trust I 0 0 0 0 The Michael J. Zamkow 2000 Family Trust 0 0 0 0 The Michael P. Mortara 2000 Annuity Trust I 0 0 0 0 The Michael Paul Mortara 2000 Trust 0 0 0 0 The Michael Stecher 2000 Trust 0 0 0 0 The Milton R. Berlinski 2000 Annuity Trust I 0 0 0 0 The Mossavar-Rahmani 2000 Annuity Trust I 0 0 0 0 The Mossavar-Rahmani 2000 Family Trust 0 0 0 0 Murphy 2000 0 0 0 0 Murphy 2000 (continuing trust) 0 0 0 0 The Natalie Cailyn Rogers 2000 Trust 0 0 0 0 The Nicole Schiller 2000 Trust 0 0 0 0 The Nina B. Haydock 2000 Trust 0 0 0 0 The Peter C. Gerhard 2000 Family Trust 0 0 0 0 The Peter D. Kiernan, III 2000 Annuity Trust I 0 0 0 0 The Peter Kiernan IV 2000 Trust 0 0 0 0 The Peter S. Kraus 2000 Annuity Trust I 0 0 0 0 The Philip D. Murphy 2000 Annuity Trust I 0 0 0 0 The Philip D. Murphy 2000 Family Trust 0 0 0 0 The Philip Darivoff 2000 Annuity Trust I 0 0 0 0 The Rachel M. Darivoff 2000 Trust 0 0 0 0 The Ralph F. Rosenberg 2000 Annuity Trust I 0 0 0 0 The Ralph F. Rosenberg 2000 Family Trust 0 0 0 0 Randal M. Fippinger-Millennium Trust 0 0 0 0
27 28
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The Randolph L. Cowen 2000 Family Trust 0 0 0 0 Rayas Trust Jersey 0 0 0 0 The Rebecca Viniar 2000 Trust 0 0 0 0 The Richard A. Friedman 2000 Annuity Trust I 0 0 0 0 The Richard A. Friedman 2000 Family Trust 0 0 0 0 The Richard A. Sapp 2000 Annuity Trust I 0 0 0 0 The Richard A. Sapp 2000 Family Trust 0 0 0 0 The Richard E. Witten 2000 Annuity Trust I 0 0 0 0 The Richard G. Sherlund 2000 Annuity Trust I 0 0 0 0 Robert A. Fippinger, Jr.-Millennium Trust 0 0 0 0 The Robert B. Litterman 2000 Annuity Trust I 0 0 0 0 The Robert B. Litterman 2000 Family Trust 0 0 0 0 The Robert B. Morris III 2000 Annuity Trust I 0 0 0 0 The Robert J. Hurst 2000 Annuity Trust I 0 0 0 0 The Robert J. Hurst 2000 Family Trust 0 0 0 0 The Robert J. Katz 2000 Annuity Trust I 0 0 0 0 The Robert J. O Shea 2000 Annuity Trust I 0 0 0 0 The Robert J. O Shea 2000 Family Trust 0 0 0 0 The Robert J. Pace 2000 Annuity Trust I 0 0 0 0 The Robert J. Pace 2000 Family Trust 0 0 0 0 The Robert K. Steel 2000 Annuity Trust I 0 0 0 0 The Robert B. Morris III 2000 Family Trust 0 0 0 0 The Robin Neustein 2000 Annuity Trust I 0 0 0 0 The Samantha Schiller 2000 Trust 0 0 0 0 The Sarah B. Lopatin 2000 Trust 0 0 0 0 The Sarah Delacy Kiernan 2000 Trust 0 0 0 0 The Sarah M. Darivoff 2000 Trust 0 0 0 0 The Sarah Rose Berlinski 2000 Trust 0 0 0 0
28 29
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The Scott B. Kapnick 2000 Annuity Trust I 0 0 0 0 The Scott B. Kapnick 2000 Family Trust 0 0 0 0 Scott M. Pinkus 2000 Family Trust New Jersey 0 0 0 0 Scott M. Pinkus 2000 GRAT New Jersey 0 0 0 0 The Scott S. Prince Trust 0 0 0 0 The Stephen M. Neidich 2000 Trust 0 0 0 0 The Steven M. Heller, Jr. 2000 Trust 0 0 0 0 The Steven T. Mnuchin 2000 Annuity Trust I 0 0 0 0 The Steven T. Mnuchin 2000 Family Trust 0 0 0 0 The Stuart Mark Rothenberg 2000 Annuity Trust I 0 0 0 0 The Stuart Mark Rothenberg 2000 Family Trust 0 0 0 0 The Terence M. O Toole 2000 Annuity Trust I 0 0 0 0 The Terence M. O Toole 2000 Family Trust 0 0 0 0 The Tess Augusta Linden 2000 Trust 0 0 0 0 The Thomas K. Montag 2000 Annuity Trust I 0 0 0 0 The Thomas K. Montag 2000 Family Trust 0 0 0 0 The Tracy Richard Wolstencroft 2000 Annuity Trust I 0 0 0 0 The Tracy Richard Wolstencroft 2000 Family Trust 0 0 0 0 Trust for the benefit of David Ford, Jr. under Indenture of Trust B of David B. Ford dated 6/16/00 Pennsylvania 0 0 0 0 Trust for the benefit of Jamie Ford under Indenture of Trust B of David B. Ford dated as of 6/16/00 Pennsylvania 0 0 0 0 Trust u/a dated 01/01/93 for the benefit of Stefanie Luckow New Jersey 0 0 0 0 Trust u/a James Kellogg III New Jersey 0 0 0 0 The Walter H. Haydock 2000 Annuity Trust I 0 0 0 0 The Walter H. Haydock, Jr. 2000 Trust 0 0 0 0 The William C. Sherlund 2000 Trust 0 0 0 0 The William Keith Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0
29 30
ITEM 6 PLACE OF ITEM 7 ITEM 8 ITEM 9 ITEM 10 ORGANIZATION SOLE SHARED SOLE SHARED (NEW YORK VOTING VOTING DISPOSITIVE DISPOSITIVE UNLESS POWER OF POWER OF POWER OF POWER OF ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ------------ -------- --------- ------------ ------------- The William Keith Litzenberger Remainder Trust 0 0 0 0 The Zachariah Cobrinik 2000 Annuity Trust I 0 0 0 0 The Zachariah Cobrinik Family 2000 Trust 0 0 0 0 PARTNERSHIPS - ------------ ALS Investment Partners, L.P. Delaware 0 0 0 0 Beech Associates, L.P. Delaware 0 0 0 0 Bermuda Partners, L.P. Delaware 0 0 0 0 Crestley, L.P. Delaware 0 0 0 0 Daniel G. Brennan Family Limited Partnership Illinois 0 0 0 0 Greenley Partners, L.P. Delaware 0 0 0 0 HEMPA Limited Partnership Delaware 0 0 0 0 JSS Investment Partners, L.P. Delaware 0 0 0 0 The Litzenberger Family Limited Partnership Delaware 0 0 0 0 Mesdag Family Limited Partnership Delaware 0 0 0 0 Mijen Family Partnership Illinois 0 0 0 0 Opatrny Investment Partners, L.P. Delaware 0 0 0 0 Rantz GS Investment Partners, L.P. Delaware 0 0 0 0 The Rizner Family Limited Partnership Illinois 0 0 0 0 Savitz Investment Partners, L.P. Delaware 0 0 0 0 Silverman Partners, L.P. Delaware 0 0 0 0 Trott GS Investment Partners, L.P. Delaware 0 0 0 0 Tuft GS Investment Partners, L.P. Delaware 0 0 0 0 Windy Hill Investment Company II, L.P. Delaware 0 0 0 0 Winkelried Investment Partners, L.P. Delaware 0 0 0 0 CORPORATIONS - ------------ Anahue Limited Jersey 0 0 0 0 Guapulo Holdings Ltd Jersey 0 0 0 0 HJS2 Limited Cayman Islands 0 0 0 0 IAT Reinsurance Syndicate Ltd. Bermuda 0 0 0 0 Majix Limited Jersey 0 0 0 0 Melalula Limited Jersey 0 0 0 0 RJG Holding Company Cayman Islands 0 0 0 0 Robinelli Limited Jersey 0 0 0 0 Vyrona Holdings Limited Jersey 0 0 0 0 Zurrah Limited Jersey 0 0 0 0
30 31 This Amendment No. 10 to a Statement on Schedule 13D amends and restates in its entirety such Schedule 13D (as so amended and restated, this "Schedule"). This Amendment No. 10 is being filed because on October 31, 2000, 60 additional persons became Covered Persons (as defined below) under the Shareholders' Agreement (as defined below) upon the consummation of the acquisition by The Goldman Sachs Group, Inc. of SLK LLC (together with its subsidiaries and affiliates, "SLK"). Item 1. Security and Issuer This Schedule relates to the Common Stock, par value $.01 per share (the "Common Stock"), of The Goldman Sachs Group, Inc., a Delaware corporation (together with its subsidiaries and affiliates, "GS Inc."). The address of the principal executive offices of GS Inc. is 85 Broad Street, New York, New York 10004. Item 2. Identity and Background (a), (b), (c), (f) The cover page to this Schedule and Appendix A hereto contain the names of the persons ("Covered Persons") who beneficially own Common Stock subject to a Shareholders' Agreement ("Covered Shares"), dated as of May 7, 1999, to which the Covered Persons are party (as amended from time to time, the "Shareholders' Agreement"). This filing is being made on behalf of all of the Covered Persons, and their agreement that this filing may be so made is contained in the Shareholders' Agreement. This Schedule contains certain information relating to Sumitomo Bank Capital Markets, Inc. ("SBCM") and Kamehameha Activities Association ("KAA"), who may be deemed to be members of a "group" with the Covered Persons. Each Covered Person hereby disclaims beneficial ownership of the shares of Common Stock and other equity securities of GS Inc. subject to the Voting Agreements between SBCM and KAA, respectively, on the one hand, and GS Inc., on the other hand (respectively, the "SBCM Shares" and the "KAA Shares"). All information contained in this Schedule relating to SBCM and KAA has been included based upon information provided by SBCM and KAA; the separate Schedules 13D filed by SBCM and KAA and any amendments thereto should be referred to for information relating to SBCM and KAA, respectively. Appendix A hereto also provides the citizenship or place of organization of each Covered Person. Each Covered Person who is an individual (an "Individual Covered Person") is a senior professional employed or formerly employed by GS Inc. or a spouse or former spouse thereof. GS Inc. is a global investment banking and securities firm. Each Covered Person who is not an individual is a trust, limited partnership or corporation created by or for an Individual Covered Person solely for estate planning purposes. Each Covered Person listed in Appendix A under the caption "Partnerships" is a limited partnership of which an Individual Covered Person is general partner. Each Covered Person listed in Appendix A under the caption "Corporations" (a "Corporate Covered Person") is controlled by an Individual Covered Person (the "Controlling Covered Person"). The name, citizenship, business address and present principal occupation or employment of each of the directors and executive officers of each Corporate Covered Person (other than the Controlling Covered Person) is set forth in Annex A hereto. The business address of each Covered Person for purposes of this Schedule is: (i) in the case of entities organized in Jersey, 26 New Street, St. Helier, Jersey, JE4 3RA; (ii) in the case of entities organized in the Cayman Islands, P.O. Box 309, Ugland House, South Church Street, George Town, Grand Cayman, Cayman Islands; (iii) in the case of entities organized in Bermuda, Victoria Hall, 11 Victoria Street, Hamilton HM11, Bermuda; and (iv) in the case of all other Covered Persons, 85 Broad Street, New York, New York 10004. (d), (e) Except as described in Annex A or Annex B, during the last five years, no Covered Person or, to the best knowledge of the Covered Persons, any executive officer or director of a Covered Person, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in such Covered Person being subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration The Covered Shares have been and will be acquired by the Covered Persons in the following manner: (i) the former profit participating limited partners active in the business of The Goldman Sachs Group, L.P. ("Group L.P.") (each such former partner, a "PMD" and, collectively, the "PMDs") acquired certain Covered Shares in exchange for their interests in Group L.P. and certain of its affiliates and investee corporations; (ii) the former 31 32 owners (the "Hull Covered Persons") of Hull and Associates, L.L.C. ("Hull") acquired certain Covered Shares in exchange for their interests in Hull; (iii) the former members of SLK (the "SLK Covered Persons") acquired the Covered Shares in exchange for their interests in SLK; (iv) certain Individual Covered Persons have acquired and will acquire beneficial ownership of certain other Covered Shares in connection with GS Inc.'s initial public offering and/or pursuant to GS Inc.'s employee compensation, benefit or similar plans; (v) certain Individual Covered Persons (the "Transferee Covered Persons") acquired their Covered Shares from PMDs in accordance with pre-existing contractual arrangements or judicial decrees; and (vi) certain Covered Persons (the "Estate Planning Covered Persons") have acquired and will acquire beneficial ownership of their Covered Shares as contributions or gifts made by Individual Covered Persons. Covered Persons may from time to time acquire Common Stock not subject to the Shareholders' Agreement ("Uncovered Shares") for investment purposes. Such Common Stock may be acquired with personal funds of or funds borrowed by such Covered Person. Item 4. Purpose of Transactions The Individual Covered Persons, other than the Hull Covered Persons, the SLK Covered Persons and the Transferee Covered Persons, acquired the Covered Shares in connection with the succession of GS Inc. to the business of Group L.P. and GS Inc.'s initial public offering and through certain employee compensation, benefit or similar plans of GS Inc. The Hull Covered Persons acquired the Covered Shares in connection with the acquisition by GS Inc. of Hull and through certain employee compensation, benefit or similar plans of GS Inc. The SLK Covered Persons acquired the Covered Shares in connection with the acquisition by GS Inc. of SLK. The Transferee Covered Persons acquired their Covered Shares from PMDs in accordance with pre-existing contractual arrangements or judicial decrees. As a condition to the transfer of the Covered Shares, the Shareholders' Committee required that each Transferee Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions referred to in Item 6 below. The Estate Planning Covered Persons acquired the Covered Shares as contributions or gifts made for estate planning purposes by Individual Covered Persons, and the provisions of the organizational documents of certain Estate Planning Covered Persons provide for the distribution of Common Stock to certain other Covered Persons. As a condition to the contribution or gift of the Covered Shares, the Shareholders' Committee required that each Estate Planning Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions referred to in Item 6 below. The board of directors of GS Inc. has approved a program (the "Rule 144 Program") to permit the PMDs and former direct and indirect owners of Hull to sell, in a coordinated manner, a portion of their shares of Common Stock in accordance with the volume and manner of sale limitations of Rule 144 under the Securities Act of 1933, as amended ("Rule 144"). Sales under the Rule 144 Program commenced on September 25, 2000. During GS Inc.'s fiscal quarter ending November 24, 2000, each of the Covered Persons listed in Annex C intends to sell up to the number of shares of Common Stock set forth opposite such Covered Person's name in Annex C under the Rule 144 Program (an aggregate of up to 7,897,714 shares for all Covered Persons, of which 6,091,632 shares had been sold as of October 31, 2000 as described in Annex E). Sales under the Rule 144 Program are made on behalf of the participating Covered Persons pursuant to a Power of Attorney, a form of which is filed as an Exhibit to this Schedule. The Rule 144 Program may continue in subsequent fiscal quarters, but can be suspended or terminated at any time. GS Inc. has not solicited indications of interest from any of the Covered Persons as to whether they would like to sell shares of Common Stock in subsequent fiscal quarters. Covered Persons may from time to time acquire Uncovered Shares for investment purposes. Except as described in Item 6 and except for the acquisition by Covered Persons of Common Stock pursuant to employee compensation, benefit or similar plans of GS Inc. in the future or as described above, none of the Covered Persons has any plans or proposals which relate to or would result in their acquisition of additional Common Stock or any of the other events described in Item 4(a) through 4(j). Each Covered Person is expected to evaluate on an ongoing basis GS Inc.'s financial condition and prospects and his or her interests in and with respect to GS Inc. Accordingly, each Covered Person may change his 32 33 or her plans and intentions at any time and from time to time. In particular, each Covered Person may at any time and from time to time acquire or dispose of shares of Common Stock. Item 5. Interest in Securities of the Issuer (a) Rows (11) and (13) of the cover page to this Schedule, Appendix A and Annex A are hereby incorporated by reference. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person and disclaims beneficial ownership of the SBCM Shares and the KAA Shares. Except as described in Annex D, none of the shares of Common Stock reported in rows (11) and (13) of the cover page to this Schedule and Appendix A are shares as to which there is a right to acquire exercisable within 60 days. (b) Rows (7) through (10) of the cover page to this Schedule, Appendix A and Annex A set forth the percentage range of Covered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; the number of Uncovered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; and the number of shares of Common Stock as to which there is shared power to vote or direct the vote or to dispose or direct the disposition. The power to vote Covered Shares by Covered Persons is shared with each other Covered Person, as described below in response to Item 6. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person and disclaims beneficial ownership of the SBCM Shares and the KAA Shares. (c) Except as described in Annex E or previously reported on Schedule 13D, no Covered Person has effected any transactions in Common Stock in the past 60 days. (d), (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Each Covered Person listed on the cover page to this Schedule and Appendix A hereto is a party to the Shareholders' Agreement. The Shareholders' Agreement, and forms of the Counterparts to the Shareholders' Agreement executed by or on behalf of the Estate Planning Covered Persons, certain Hull Covered Persons and the Transferee Covered Persons, are filed as Exhibits to this Schedule and the following summary of the terms of the Shareholders' Agreement is qualified in its entirety by reference thereto. In the case of each SLK Covered Person, certain of the provisions and restrictions discussed below are set forth in an Amended and Restated Member Agreement, dated as of September 10, 2000, and amended and restated as of October 26, 2000 (a "Member Agreement"), between such SLK Covered Person and GS Inc. The form of Member Agreement is filed as an Exhibit to this Schedule and the following summary is qualified in its entirety by reference thereto. References to the "board of directors" are to the board of directors of The Goldman Sachs Group, Inc. The Covered Shares include generally all Common Stock acquired or to be acquired from GS Inc. by the Covered Persons. Covered Shares include: shares of Common Stock acquired by the PMDs in exchange for their interests in Group L.P. and certain of its affiliates; shares of Common Stock acquired by the Hull Covered Persons in exchange for their interests in Hull; shares of Common Stock acquired by the SLK Covered Persons in exchange for their interests in SLK; shares of Common Stock acquired or to be acquired through the grant of restricted stock units, stock options and interests in a defined contribution plan (except for certain Uncovered Shares as specified in Appendix A); shares of Common Stock acquired by the Transferee Covered Persons in accordance with pre-existing contractual arrangements or judicial decrees; shares of Common Stock acquired or to be acquired by Estate Planning Covered Persons from Individual Covered Persons for estate planning purposes and shares of Common Stock to be distributed by Estate Planning Covered Persons to Individual Covered Persons or to other Estate Planning Covered Persons; and, unless otherwise determined by the board of directors and the Shareholders' Committee, any shares of Common Stock acquired or to be acquired by the Covered Persons from GS Inc. through any other employee compensation, benefit or similar plan. Covered Shares do not include any shares of Common Stock purchased or to be purchased by a Covered Person in the open market or in a subsequent underwritten public offering. 33 34 TRANSFER RESTRICTIONS Each Individual Covered Person (other than the Transferee Covered Persons and, with respect to the shares of Common Stock received in exchange for their interests in Hull, the Hull Covered Persons) has agreed in the Shareholders' Agreement, among other things, to retain beneficial ownership of Covered Shares at least equal to 25% of the cumulative number of Covered Shares beneficially owned by him or her at the time he or she became a Covered Person or acquired by him or her thereafter and with no credit for dispositions (the "General Transfer Restrictions") for so long as he or she is a Covered Person and an employee of GS Inc. (an "Employee Covered Person"). The PMDs will also be subject to limitations on their ability to transfer Covered Shares received in connection with the succession of GS Inc. to the business of Group L.P. These restrictions will also apply to the Covered Shares acquired by the Hull Covered Persons in exchange for their interests in Hull and the Covered Shares acquired by the SLK Covered Persons in exchange for their interests in SLK. Under these restrictions, each such PMD, Hull Covered Person and SLK Covered Person has agreed not to transfer such Covered Shares until May 7, 2002, the third anniversary of the date of GS Inc.'s initial public offering of its Common Stock (the "Partner Transfer Restrictions" and, together with the General Transfer Restrictions, the "Transfer Restrictions"). The Partner Transfer Restrictions will lapse as to such Covered Shares in equal installments on each of May 7, 2002, May 7, 2003 and May 7, 2004. The Covered Shares held by each Estate Planning Covered Person and Transferee Covered Person are subject to the same Partner Transfer Restrictions that applied to such Covered Shares prior to such Covered Person's acquisition thereof. The Transfer Restrictions applicable to an Individual Covered Person (and his or her Estate Planning Covered Persons) terminate upon the death of the Individual Covered Person. WAIVERS Except in the case of a third-party tender or exchange offer, the Partner Transfer Restrictions may be waived or terminated at any time by the Shareholders' Committee described below under "Information Regarding the Shareholders' Committee". The Shareholders' Committee also has the power to waive the Transfer Restrictions to permit Covered Persons to: participate as sellers in underwritten public offerings of Common Stock and tender and exchange offers and share repurchase programs by GS Inc.; transfer Covered Shares to charities, including charitable foundations; transfer Covered Shares held in employee benefit plans; and transfer Covered Shares in specific transactions (for example, to immediate family members and trusts) or other circumstances. The Shareholders' Committee permitted the transfers of Covered Shares to the Estate Planning Covered Persons and the Transferee Covered Persons, on the condition that each Estate Planning Covered Person and Transferee Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions. On July 31, 2000, the Shareholders' Committee waived the Partner Transfer Restrictions solely to permit certain Covered Persons to pledge a portion of their Covered Shares to obtain approximately $400,000,000 in loan commitments to make investments from time to time in certain merchant banking funds sponsored by GS Inc. The loan commitments are for five years, may be drawn upon from time to time and generally require that any loans be collateralized by shares of Common Stock with a market value four times that of the amount borrowed. Pursuant to Rule 13d-3(d)(3) under the Securities Exchange Act of 1934, as amended, the pledgees did not acquire beneficial ownership of the pledged shares by virtue of the pledge. The Shareholders' Committee and, in the case of the Hull Covered Persons, the board of directors have waived the Partner Transfer Restrictions to permit the sale of up to an aggregate of 7,897,714 Covered Shares by certain Covered Persons during GS Inc.'s fiscal quarter ending November 24, 2000 under the Rule 144 Program described in Item 4 above and in Annex C hereto (of which 6,091,632 Covered Shares had been sold as of October 31, 2000). In the case of a third-party tender or exchange offer, the Transfer Restrictions may be waived or terminated: if the board of directors is recommending acceptance or is not making any recommendation with respect to acceptance of the tender or exchange offer, by a majority of the Voting Interests (as defined below); or if the board of directors is recommending rejection of the tender or exchange offer, by 66 2/3% of the outstanding Voting Interests. 34 35 In the case of a tender or exchange offer by GS Inc., a majority of the outstanding Voting Interests may also elect to waive or terminate the Transfer Restrictions. VOTING Prior to any vote of the shareholders of GS Inc., the Shareholders' Agreement requires a separate, preliminary vote of the Voting Interests on each matter upon which a vote of the shareholders is proposed to be taken (the "Preliminary Vote"). Each Covered Share held by an Employee Covered Person and each other Covered Share subject to the Partner Transfer Restrictions will be voted in accordance with the majority of the votes cast by the Voting Interests in the Preliminary Vote. In elections of directors, each Covered Share will be voted in favor of the election of those persons receiving the highest numbers of votes cast by the Voting Interests in the Preliminary Vote. "Voting Interests" are Covered Shares beneficially owned by all Covered Persons through December 31, 2000 and thereafter are Covered Shares beneficially owned by all Employee Covered Persons. OTHER RESTRICTIONS The Shareholders' Agreement also prohibits the Covered Persons from engaging in certain activities relating to any securities of GS Inc. with any person who is not a Covered Person or a director, officer or employee of GS Inc. ("Restricted Persons"). Among other things, a Covered Person may not: participate in a proxy solicitation to or with a Restricted Person; deposit any Covered Shares in a voting trust or subject any Covered Shares to any voting agreement or arrangement that includes any Restricted Person; form, join or in any way participate in a "group" with any Restricted Person; or together with any Restricted Person, propose certain transactions with GS Inc. or seek the removal of any directors of GS Inc. or any change in the composition of the board of directors. TERM, AMENDMENT AND CONTINUATION The Shareholders' Agreement is to continue in effect until the earlier of January 1, 2050 and the time it is terminated by the vote of 66 2/3% of the outstanding Voting Interests. The Partner Transfer Restrictions will not terminate upon the expiration or termination of the Shareholders' Agreement unless previously waived or terminated or unless subsequently waived or terminated by the board of directors. The Shareholders' Agreement may generally be amended at any time by a majority of the outstanding Voting Interests. Unless otherwise terminated, in the event of any transaction in which a third party succeeds to the business of GS Inc. and in which Covered Persons hold securities of the third party, the Shareholders' Agreement will remain in full force and effect as to the securities of the third party, and the third party shall succeed to the rights and obligations of GS Inc. under the Shareholders' Agreement. INFORMATION REGARDING THE SHAREHOLDERS' COMMITTEE The Shareholders' Committee shall at any time consist of each of those individuals who are both Employee Covered Persons and members of the board of directors and who agree to serve as members of the Shareholders' Committee. If there are less than three individuals who are both Employee Covered Persons and members of the board of directors and who agree to serve as members of the Shareholders' Committee, the Shareholders' Committee shall consist of each such individual plus such additional individuals who are Employee Covered Persons and who are selected pursuant to procedures established by the Shareholders' Committee as shall assure a Shareholders' Committee of not less than three members who are Employee Covered Persons. Currently, Henry M. Paulson, Jr., Robert J. Hurst, John A. Thain and John L. Thornton are the members of the Shareholders' Committee. VOTING AGREEMENTS Both SBCM and KAA have, in separate voting agreements, each dated April 30, 1999 (each, a "Voting Agreement"), agreed to vote their shares of Common Stock and all other voting securities of GS Inc. in the same manner as a majority of the shares of Common Stock held by the managing directors of GS Inc. are voted for so long as they hold voting securities of GS Inc. It is expected that for so long as the Shareholders' Agreement remains in effect, the Voting Agreements will result in the shares of Common Stock owned by SBCM and KAA being voted in the same manner as the Covered Shares. The Covered Persons are not parties to the Voting Agreements, and the Voting Agreements are not enforceable by the Covered Persons, will continue to exist independent of the existence 35 36 of the Shareholders' Agreement and may be amended, waived or canceled by GS Inc. without any consent or approval of the Covered Persons. The Voting Agreements are filed as Exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. Each Covered Person hereby disclaims beneficial ownership of the SBCM Shares and the KAA Shares. PLEDGE AGREEMENTS Each PMD has pledged (the "IPO Pledge") to GS Inc. Common Stock or other assets with an initial value equal to $15 million for each such person who initially serves on the board of directors, the Management Committee or the Partnership Committee of GS Inc. and $10 million for each other such person. This pledge secures the liquidated damages provision of a noncompetition agreement which each such person has entered into with GS Inc. The form of agreement relating to noncompetition and other covenants and the form of pledge agreement, as amended, are filed as Exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. In connection with the transfers to Estate Planning Covered Persons who are corporations, the IPO Pledge was replaced with a guarantee and pledge agreement that was entered into by each corporate Estate Planning Covered Person. In addition, each Controlling Covered Person was required to pledge the capital stock of the corporate Estate Planning Covered Person to GS Inc. in order to further secure the Controlling Covered Person's obligations under the noncompetition agreement. The forms of the pledge agreements, as amended, are filed as Exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. In connection with GS Inc.'s acquisition of SLK, each SLK Covered Person who is an individual has pledged to GS Inc. Common Stock or other assets to secure the SLK Covered Person's obligation under his or her Member Agreement to pay liquidated damages upon breach of certain provisions relating to noncompetition and nonsolicitation. The form of pledge agreement, as amended, is filed as an Exhibit to this Schedule and the foregoing summary of this agreement is qualified in its entirety by reference thereto. REGISTRATION RIGHTS INSTRUMENT FOR CHARITABLE DONATIONS In connection with the donation of shares of Common Stock to certain charitable organizations discussed in footnote 4 on the cover page to this Schedule, GS Inc. entered into a Registration Rights Instrument and Supplemental Registration Rights Instrument (the "Charitable Supplement"). The following is a description of the Registration Rights Instrument, as supplemented by the Charitable Supplement. The Registration Rights Instrument and the Charitable Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the Charitable Supplement, GS Inc. has agreed to register the donated shares of Common Stock for resale by charitable foundations and public charities. GS Inc. has agreed in the Registration Rights Instrument and the Charitable Supplement to pay all of the fees and expenses relating to the offering by the charitable organizations, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the charitable organizations in connection with their resales. GS Inc. also has agreed to indemnify the charitable organizations against certain liabilities, including those arising under the Securities Act. GS Inc. may amend the Registration Rights Instrument and the Charitable Supplement in any manner that it deems appropriate, without the consent of any charitable organization. However, GS Inc. may not make any amendment that would cause the shares of Common Stock to fail to be "qualified appreciated stock" within the meaning of Section 170 of the Internal Revenue Code. In addition, GS Inc. may not make any amendment that would materially and adversely affect the rights of any charitable organization without the consent of a majority of the materially and adversely affected charitable organizations. REGISTRATION RIGHTS INSTRUMENT FOR EMPLOYEE MANAGING DIRECTORS In connection with the sale by certain Covered Persons (the "Employee Managing Directors") of shares of Common Stock acquired from GS Inc. pursuant to the terms of restricted stock units, GS Inc. entered into a 36 37 Supplemental Registration Rights Instrument (the "EMD Supplement"), which supplements the Registration Rights Instrument referred to above. The following is a description of the Registration Rights Instrument, as supplemented by the EMD Supplement. The Registration Rights Instrument and the EMD Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the EMD Supplement, GS Inc. has agreed to pay all of the fees and expenses relating to the registered offering of shares of Common Stock held by the Employee Managing Directors, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the Employee Managing Directors in connection with the sales. GS Inc. also has agreed to indemnify the Employee Managing Directors against certain liabilities, including those arising under the Securities Act. 37 38 Item 7. Material to be Filed as Exhibits Exhibit Description A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities Association (incorporated by reference to Exhibit B to the Initial Schedule 13D). C. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Sumitomo Bank, Limited and Sumitomo Bank Capital Markets, Inc. (incorporated by reference to Exhibit C to the Initial Schedule 13D). D. Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to Exhibit 10.20 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). E. Form of Pledge Agreement (the "IPO Pledge Agreement") (incorporated by reference to Exhibit 10.21 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). F. Form of Amendment No. 1 to the IPO Pledge Agreement (filed as Exhibit E), dated July 10, 2000 (incorporated by reference to Exhibit F to Amendment No. 4 to the Initial Schedule 13D, filed July 11, 2000 (File No. 005-56295)). G. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). H. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). I. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). J. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). K. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). L. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). M. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). 38 39 N. Form of Guarantee and Pledge Agreement for non-U.S. corporations (incorporated by reference to Exhibit N to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). O. Form of Pledge Agreement for shareholders of non-U.S. corporations (incorporated by reference to Exhibit O to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). P. Form of Pledge Agreement for shareholders of non-U.S. corporations (Jersey version) (incorporated by reference to Exhibit P to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). Q. Form of Counterpart to Shareholders' Agreement for Transferee Covered Persons (incorporated by reference to Exhibit Q to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). R. Supplemental Registration Rights Instrument, dated as of June 19, 2000 (incorporated by reference to Exhibit R to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). S. Supplemental Registration Rights Instrument, dated as of July 31, 2000 (incorporated by reference to Exhibit S to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). T. Underwriting Agreement (U.S. Version), dated as of August 1, 2000 (incorporated by reference to Exhibit T to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). U. Underwriting Agreement (International Version), dated as of August 1, 2000 (incorporated by reference to Exhibit U to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). V. Underwriting Agreement (Asia/Pacific Version), dated as of August 1, 2000 (incorporated by reference to Exhibit V to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). W. Form of Power of Attorney to be executed by Covered Persons participating in the Rule 144 Program (incorporated by reference to Exhibit W to Amendment No. 8 to the Initial Schedule 13D, filed September 25, 2000 (File No. 005-56295)). X. Power of Attorney (incorporated by reference to Exhibit I to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). Y. Form of Amended and Restated Member Agreement, dated as of September 10, 2000, and amended and restated as of October 26, 2000, between GS Inc. and each SLK Covered Person. Z. Form of Pledge Agreement, dated as of October 31, 2000, between GS Inc. and each SLK Covered Person. 39 40 ANNEX A INFORMATION REQUIRED AS TO EXECUTIVE OFFICERS AND DIRECTORS OF CORPORATE COVERED PERSONS
CONVICTIONS OR VIOLATIONS BENEFICIAL OF FEDERAL OWNERSHIP OF OR STATE THE COMMON LAWS WITHIN STOCK OF THE BUSINESS PRESENT THE LAST GOLDMAN SACHS NAME CITIZENSHIP ADDRESS EMPLOYMENT FIVE YEARS GROUP, INC. - --------------------------------------------------------------------------------------- Steven M. USA 85 Broad Managing None Covered Bunson Street Director, Person, so New York, NY The Goldman ownership is 10004 Sachs Group, as set forth Inc. in or incorporated into Item 5 above. Russell E. USA 85 Broad Managing None Covered Makowsky Street Director, Person, so New York, NY The Goldman ownership is 10004 Sachs Group, as set forth Inc. in or incorporated into Item 5 above. Michael H. UK 26 New Street, Partner, None None Richardson St. Helier, Bedell Jersey, Cristin JE4 3RA John D. UK Victoria Hall Vice President/ None None Amaral 11 Victoria St. Account Manager, Hamilton HM11 J&H Marsh & Bermuda McLennan Marguerite USA 120 Broadway Vice President, None None R. Gorman New York, NY Spear, Leeds & 10271 Kellogg, L.P. Richard D. UK 41 Cedar Avenue Partner, Appleby, None None Spurling Hamilton HM12 Spurling & Kempe Bermuda
40 41 ANNEX B ITEMS 2(D) AND 2(E). INFORMATION REQUIRED AS TO CERTAIN PROCEEDINGS None. 41 42 ANNEX C ITEM 4. PLANNED DISPOSITION OF SECURITIES OF THE ISSUER BY COVERED PERSONS During GS Inc.'s fiscal quarter ending November 24, 2000, each of the Covered Persons listed below intends to sell up to the number of shares of Common Stock set forth opposite such Covered Person's name under the Rule 144 Program referred to in Item 4 above. See Annex E for information on the number of shares of Common Stock sold through October 31, 2000 under the Rule 144 Program (the difference between the number set forth in the following table and the number set forth in Annex E being the number of shares each listed Covered Person intends to sell under the Rule 144 Program during the remainder of the fiscal quarter).
NUMBER OF COVERED PERSON SHARES Bradley I. Abelow 15,628 Paul M. Achleitner 70,000 Jonathan R. Aisbitt 80,901 Andrew M. Alper 50,000 Armen A. Avanessians 25,000 David Baum 16,145 Ron E. Beller 34,081 Lloyd C. Blankfein 90,173 Peter L. Briger, Jr. 35,274 Richard J. Bronks 17,218 Lawrence R. Buchalter 27,318 Michael J. Carr 20,342 Christopher J. Carrera 17,048 Mary Ann Casati 12,000 Zachariah Cobrinik 27,922 Abby Joseph Cohen 10,000 Gary D. Cohn 44,792 Christopher A. Cole 47,713 Carlos A. Cordeiro 53,232 Henry Cornell 53,595 E. Gerald Corrigan 60,000 Jon S. Corzine 183,863 Claudio Costamagna 20,721 Frank L. Coulson, Jr. 67,653 Randolph L. Cowen 30,234 Philip M. Darivoff 13,522 Timothy D. Dattels 32,338 Gavyn Davies 96,392 David A. Dechman 16,943 Joseph Della Rosa 50,046 Alexander C. Dibelius 10,331 John O. Downing 35,000 Connie K. Duckworth 44,111 Glenn P. Earle 31,505 Paul S. Efron 17,410 J. Michael Evans 43,148
42 43
NUMBER OF COVERED PERSON SHARES W. Mark Evans 70,000 Pieter Maarten Feenstra 17,961 David B. Ford 68,217 Edward C. Forst 14,292 Christopher G. French 17,593 Richard A. Friedman 97,235 Joseph D. Gatto 30,000 Peter C. Gerhard 52,826 Nomi P. Ghez 40,947 Joseph H. Gleberman 63,858 Jacob D. Goldfield 56,427 Amy O. Goodfriend 18,410 Andrew M. Gordon 5,000 Geoffrey T. Grant 29,874 Eric P. Grubman 35,964 Joseph D. Gutman 27,214 Robert S. Harrison 35,332 Thomas J. Healey 53,466 Sylvain M. Hefes 71,210 David B. Heller 20,000 David L. Henle 15,000 Mary C. Henry 31,752 M. Roch Hillenbrand 15,000 Jacquelyn M. Hoffman-Zehner 24,858 Fern Hurst 10,000 Robert J. Hurst 40,000 Francis J. Ingrassia 38,549 Reuben Jeffery III 64,180 Stefan J. Jentzsch 9,759 Chansoo Joung 20,069 Ann F. Kaplan 59,669 Scott B. Kapnick 59,333 Robert J. Katz 45,000 Douglas W. Kimmelman 22,890 Bradford C. Koenig 35,301 Jonathan L. Kolatch 37,596 Peter S. Kraus 14,599 David G. Lambert 23,773 Thomas D. Lasersohn 17,224 Lawrence H. Linden 58,248 Robert Litterman 35,267 Robert H. Litzenberger 10,671 Jonathan M. Lopatin 32,729 Michael R. Lynch 76,454 Peter G. C. Mallinson 58,849
43 44
NUMBER OF COVERED PERSON SHARES Arthur S. Margulis, Jr. 10,436 Ronald G. Marks 28,907 Eff W. Martin 70,502 John P. McNulty 95,969 E. Scott Mead 47,532 Sanjeev K. Mehra 19,378 T. Willem Mesdag 46,026 Eric M. Mindich 60,021 Masanori Mochida 81,520 Karsten N. Moller 32,686 Thomas K. Montag 40,000 Robert B. Morris III 63,346 Michael P. Mortara 103,831 Sharmin Mossavar-Rahmani 67,631 Edward A. Mule 50,830 Thomas S. Murphy, Jr. 12,401 Philip D. Murphy 20,000 Avi M. Nash 11,000 Daniel M. Neidich 72,019 Kipp M. Nelson 33,652 Robin Neustein 43,644 Suzanne M. Nora Johnson 62,319 Michael E. Novogratz 15,304 Terence J. O'Neill 57,525 Timothy J. O'Neill 68,302 Donald C. Opatrny, Jr. 62,602 Robert J. O'Shea 54,483 Greg M. Ostroff 12,473 Terence M. O'Toole 77,486 Robert J. Pace 12,961 Gregory K. Palm 38,117 Scott M. Pinkus 55,395 Timothy C. Plaut 37,633 Wiet H. M. Pot 73,680 John J. Powers 73,679 Scott Prince 14,554 Stephen D. Quinn 60,892 Michael G. Rantz 33,571 Girish V. Reddy 16,321 Arthur J. Reimers III 41,228 James P. Riley, Jr. 61,485 Simon M. Robertson 48,000 J. David Rogers 66,642 Emmanuel Roman 17,473 Ralph Rosenberg 13,073
44 45
NUMBER OF COVERED PERSON SHARES Stuart M. Rothenberg 31,738 Michael S. Rubinoff 17,189 Richard M. Ruzika 16,528 Jeri Lynn Ryan 9,673 John C. Ryan 18,000 Michael D. Ryan 14,107 Richard A. Sapp 87,526 Joseph Sassoon 54,154 Muneer A. Satter 30,608 Jonathan S. Savitz 10,430 Peter Savitz 27,961 Howard B. Schiller 33,028 Antoine Schwartz 18,069 Eric S. Schwartz 59,637 Charles B. Seelig, Jr. 57,959 Steven M. Shafran 25,236 Richard S. Sharp 67,714 James M. Sheridan 28,344 Richard G. Sherlund 39,541 Michael S. Sherwood 56,415 Howard A. Silverstein 46,000 Dinakar Singh 16,934 Christian J. Siva-Jothy 17,390 Cody J Smith 38,756 Jonathan S. Sobel 16,896 Marc A. Spilker 30,865 Daniel W. Stanton 44,000 Esta E. Stecher 39,033 Cathrine S. Steck 13,010 Fredric E. Steck 10,000 Gene T. Sykes 25,000 Mark R. Tercek 28,029 Donald F. Textor 35,706 John R. Tormondsen 26,319 Leslie C. Tortora 65,742 John L. Townsend III 55,384 Byron D. Trott 37,898 Robert B. Tudor III 17,303 Thomas E. Tuft 73,909 Malcolm B. Turnbull* 18,096 John E. Urban 17,172 Lee G. Vance 43,555 David A. Viniar 74,341 Barry S. Volpert 70,000
- ---------- * Includes shares held by a corporation wholly owned by the Covered Person. 45 46
NUMBER OF COVERED PERSON SHARES Thomas B. Walker III 80,153 George H. Walker IV 15,886 Patrick J. Ward 102,590 George W. Wellde, Jr. 49,880 Anthony G. Williams 58,958 Gary W. Williams 50,000 Kendrick R. Wilson III 44,825 Jon Winkelried 59,023 Steven J. Wisch 10,000 Richard E. Witten 70,528 Tracy R. Wolstencroft 30,000 Yasuyo Yamazaki 20,000 Danny O. Yee 36,923 Michael J. Zamkow 41,194 Yoel Zaoui 20,749 Gregory H. Zehner 25,672 Joseph R. Zimmel 78,314 Barry L. Zubrow 64,255 Mark A. Zurack 30,871 TRUSTS Anahue Trust 10,500 The Guapulo Trust 37,501 Mark Dehnert Living Trust 3,499 PARTNERSHIPS The Daniel G. Brennan Family Limited Partnership 5,365 Mijen Family Partnership 9,570 The Rizner Family Limited Partnership 8,025 CORPORATIONS Majix Limited 32,739 Melalula Limited 64,775
46 47 ANNEX D ITEM 5(A). DESCRIPTION OF SHARES AS TO WHICH THERE IS A RIGHT TO ACQUIRE EXERCISABLE WITHIN 60 DAYS An aggregate of 32,046 shares of Common Stock are deliverable to Covered Persons upon the exercise of stock options that vested and became exercisable on September 25, 2000. Upon delivery, these shares of Common Stock will be Covered Shares. 47 48 ANNEX E ITEM 5(C). DESCRIPTION OF ALL TRANSACTIONS IN THE COMMON STOCK EFFECTED BY THE COVERED PERSONS IN THE PAST 60 DAYS AND NOT PREVIOUSLY REPORTED ON SCHEDULE 13D Commencing on September 25, 2000, the Covered Persons listed in Table I below sold an aggregate of 6,091,632 Covered Shares under the Rule 144 Program referred to in Item 4 above through October 31, 2000. Sales were made on or through the New York Stock Exchange for cash by each listed Covered Person on the days listed in Table II below (the "Trading Days") at the sales prices set forth in Table II. By reason of the operation of the Rule 144 Program, all listed Covered Persons were deemed to have received the same price for the shares sold on a particular Trading Day. The following table sets forth the name of each Covered Person who participated in the Rule 144 Program, the number of shares sold by such Covered Person on each Trading Day* and the number of shares sold by such Covered Person in the aggregate for all Trading Days: Table I
SHARES SOLD TOTAL SHARES EACH TRADING SOLD ON ALL COVERED PERSON DAY TRADING DAYS --------------------------------------------------------------------- Bradley I. Abelow 446 12,042 Paul M. Achleitner 2,000 53,999 Jonathan R. Aisbitt 2,311 62,397 Andrew M. Alper 1,428 38,556 Armen A. Avanessians 714 19,278 David Baum 461 12,447 Ron E. Beller 974 26,298 Lloyd C. Blankfein 2,576 69,551 Peter L. Briger, Jr. 1,008 27,216 Richard J. Bronks 492 13,284 Lawrence R. Buchalter 780 21,060 Michael J. Carr 581 15,687 Christopher J. Carrera 487 13,149 Mary Ann Casati 343 9,261 Zachariah Cobrinik 798 21,546 Abby Joseph Cohen 286 7,722 Gary D. Cohn 1,280 34,560 Christopher A. Cole 1,363 36,801 Carlos A. Cordeiro 1,521 41,066 Henry Cornell 1,531 41,337 E. Gerald Corrigan 1,714 46,278 Jon S. Corzine 5,252 141,804 Claudio Costamagna 592 15,984 Frank L. Coulson, Jr. 1,933 52,190 Randolph L. Cowen 864 23,328
- ---------- * The number of shares sold by a Covered Person on some Trading Days may have been one share lower than the number listed. 48 49 SHARES SOLD TOTAL SHARES EACH TRADING SOLD ON ALL COVERED PERSON DAY TRADING DAYS --------------------------------------------------------------------- Philip M. Darivoff 386 10,422 Timothy D. Dattels 924 24,948 Gavyn Davies 2,754 74,357 David A. Dechman 484 13,068 Joseph Della Rosa 1,430 38,610 Alexander C. Dibelius 295 7,965 John O. Downing 1,000 27,000 Connie K. Duckworth 1,260 34,020 Glenn P. Earle 900 24,300 Paul S. Efron 497 13,419 J. Michael Evans 1,233 33,291 W. Mark Evans 2,000 53,999 Pieter Maarten Feenstra 513 13,851 David B. Ford 1,949 52,622 Edward C. Forst 408 11,016 Christopher G. French 503 13,581 Richard A. Friedman 2,778 75,005 Joseph D. Gatto 857 23,139 Peter C. Gerhard 1,509 40,743 Nomi P. Ghez 1,170 31,590 Joseph H. Gleberman 1,824 49,248 Jacob D. Goldfield 1,612 43,523 Amy O. Goodfriend 526 14,202 Andrew M. Gordon 143 3,861 Geoffrey T. Grant 853 23,031 Eric P. Grubman 1,027 27,729 Joseph D. Gutman 777 20,979 Robert S. Harrison 1,009 27,243 Thomas J. Healey 1,527 41,229 Sylvain M. Hefes 2,034 54,918 David B. Heller 571 15,417 David L. Henle 429 11,583 Mary C. Henry 907 24,489 M. Roch Hillenbrand 429 11,583 Jacquelyn M. Hoffman-Zehner 710 19,170 Fern Hurst 286 7,722 Robert J. Hurst 1,143 30,861 Francis J. Ingrassia 1,101 29,727 Reuben Jeffery III 1,833 49,491 Stefan J. Jentzsch 279 7,533 Chansoo Joung 573 15,471 Ann F. Kaplan 1,705 46,034 Scott B. Kapnick 1,695 45,764 Robert J. Katz 1,286 34,722 Douglas W. Kimmelman 654 17,658 49 50 SHARES SOLD TOTAL SHARES EACH TRADING SOLD ON ALL COVERED PERSON DAY TRADING DAYS --------------------------------------------------------------------- Bradford C. Koenig 1,008 27,216 Jonathan L. Kolatch 1,074 28,998 Peter S. Kraus 417 11,259 David G. Lambert 679 18,333 Thomas D. Lasersohn 492 13,284 Lawrence H. Linden 1,664 44,927 Robert Litterman 1,007 27,189 Robert H. Litzenberger 305 8,235 Jonathan M. Lopatin 935 25,245 Michael R. Lynch 2,184 58,968 Peter G. C. Mallinson 1,681 45,387 Arthur S. Margulis, Jr. 298 8,046 Ronald G. Marks 826 22,302 Eff W. Martin 2,014 54,378 John P. McNulty 2,742 74,033 E. Scott Mead 1,358 36,666 Sanjeev K. Mehra 554 14,958 T. Willem Mesdag 1,315 35,505 Eric M. Mindich 1,715 46,304 Masanori Mochida 2,329 62,882 Karsten N. Moller 934 25,218 Thomas K. Montag 1,143 30,861 Robert B. Morris III 1,810 48,869 Michael P. Mortara 2,966 80,082 Sharmin Mossavar-Rahmani 1,932 52,164 Edward A. Mule 1,452 39,204 Thomas S. Murphy, Jr. 354 9,558 Philip D. Murphy 571 15,417 Avi M. Nash 314 8,478 Daniel M. Neidich 2,057 55,539 Kipp M. Nelson 961 25,947 Robin Neustein 1,247 33,669 Suzanne M. Nora Johnson 1,780 48,060 Michael E. Novogratz 437 11,799 Terence J. O'Neill 1,643 44,361 Timothy J. O'Neill 1,951 52,677 Donald C. Opatrny, Jr. 1,788 48,276 Robert J. O'Shea 1,556 42,012 Greg M. Ostroff 356 9,612 Terence M. O'Toole 2,214 59,777 Robert J. Pace 370 9,990 Gregory K. Palm 1,089 29,403 Scott M. Pinkus 1,582 42,714 Timothy C. Plaut 1,075 29,025 Wiet H. M. Pot 2,105 56,834 50 51 SHARES SOLD TOTAL SHARES EACH TRADING SOLD ON ALL COVERED PERSON DAY TRADING DAYS --------------------------------------------------------------------- John J. Powers 2,105 56,834 Scott Prince 416 11,232 Stephen D. Quinn 1,740 46,979 Michael G. Rantz 959 25,893 Girish V. Reddy 466 12,582 Arthur J. Reimers III 1,178 31,806 James P. Riley, Jr. 1,756 47,412 Simon M. Robertson 1,371 37,017 J. David Rogers 1,904 51,407 Emmanuel Roman 499 13,473 Ralph Rosenberg 373 10,071 Stuart M. Rothenberg 907 24,489 Michael S. Rubinoff 491 13,257 Richard M. Ruzika 472 12,744 Jeri Lynn Ryan 276 7,452 John C. Ryan 514 13,878 Michael D. Ryan 403 10,881 Richard A. Sapp 2,500 67,500 Joseph Sassoon 1,547 41,769 Muneer A. Satter 874 23,598 Jonathan S. Savitz 298 8,046 Peter Savitz 799 21,573 Howard B. Schiller 944 25,488 Antoine Schwartz 516 13,932 Eric S. Schwartz 1,704 46,007 Charles B. Seelig, Jr. 1,656 44,711 Steven M. Shafran 721 19,467 Richard S. Sharp 1,934 52,218 James M. Sheridan 810 21,870 Richard G. Sherlund 1,130 30,510 Michael S. Sherwood 1,612 43,523 Howard A. Silverstein 1,314 35,478 Dinakar Singh 484 13,068 Christian J. Siva-Jothy 497 13,419 Cody J Smith 1,107 29,889 Jonathan S. Sobel 483 13,041 Marc A. Spilker 882 23,814 Daniel W. Stanton 1,257 33,939 Esta E. Stecher 1,115 30,105 Cathrine S. Steck 372 10,044 Fredric E. Steck 286 7,722 Gene T. Sykes 714 19,278 Mark R. Tercek 801 21,627 Donald F. Textor 1,020 27,540 John R. Tormondsen 752 20,304 51 52 SHARES SOLD TOTAL SHARES EACH TRADING SOLD ON ALL COVERED PERSON DAY TRADING DAYS --------------------------------------------------------------------- Leslie C. Tortora 1,878 50,706 John L. Townsend III 1,582 42,714 Byron D. Trott 1,083 29,241 Robert B. Tudor III 494 13,338 Thomas E. Tuft 2,111 56,997 Malcolm B. Turnbull* 517 13,959 John E. Urban 491 13,257 Lee G. Vance 1,244 33,588 David A. Viniar 2,124 57,347 Barry S. Volpert 2,000 54,000 Thomas B. Walker III 2,290 61,829 George H. Walker IV 454 12,258 Patrick J. Ward 2,931 79,137 George W. Wellde, Jr. 1,425 38,475 Anthony G. Williams 1,684 45,468 Gary W. Williams 1,428 38,556 Kendrick R. Wilson III 1,281 34,587 Jon Winkelried 1,686 45,522 Steven J. Wisch 286 7,722 Richard E. Witten 2,015 54,404 Tracy R. Wolstencroft 857 23,139 Yasuyo Yamazaki 571 15,417 Danny O. Yee 1,055 28,485 Michael J. Zamkow 1,177 31,779 Yoel Zaoui 593 16,011 Gregory H. Zehner 733 19,791 Joseph R. Zimmel 2,237 60,399 Barry L. Zubrow 1,836 49,572 Mark A. Zurack 882 23,814 TRUSTS Anahue Trust 300 8,100 The Guapulo Trust 1,071 28,917 Mark Dehnert Living Trust 100 2,700 PARTNERSHIPS The Daniel G. Brennan Family Limited Partnership 153 4,131 Mijen Family Partnership 273 7,371 The Rizner Family Limited Partnership 229 6,183 CORPORATIONS Majix Limited 935 25,245 Melalula Limited 1,850 49,950 - ---------- * Includes shares held by a corporation wholly owned by the Covered Person. 52 53 Table II TRADING DAY PRICE PER SHARE September 25, 2000 $117.5957 September 26, 2000 112.4850 September 27, 2000 108.8514 September 28, 2000 111.5335 September 29, 2000 114.8677 October 2, 2000 114.8219 October 3, 2000 115.2372 October 4, 2000 109.8555 October 5, 2000 113.5343 October 6, 2000 108.3895 October 9, 2000 105.4208 October 10, 2000 101.7795 October 11, 2000 99.5013 October 12, 2000 96.8920 October 13, 2000 98.8632 October 16, 2000 102.4214 October 17, 2000 98.0026 October 18, 2000 96.5671 October 19, 2000 102.1251 October 20, 2000 104.1141 October 23, 2000 103.1436 October 24, 2000 103.1443 October 25, 2000 97.5391 October 26, 2000 93.5550 October 27, 2000 93.9929 October 30, 2000 95.8599 October 31, 2000 98.3052 53 54 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 2, 2000 By: /s/ Gregory K. Palm ------------------------------------------ Name: Gregory K. Palm Title: Attorney-in-Fact 54 55 EXHIBIT INDEX Exhibit Description A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities Association (incorporated by reference to Exhibit B to the Initial Schedule 13D). C. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Sumitomo Bank, Limited and Sumitomo Bank Capital Markets, Inc. (incorporated by reference to Exhibit C to the Initial Schedule 13D). D. Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to Exhibit 10.20 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). E. Form of Pledge Agreement (the "IPO Pledge Agreement") (incorporated by reference to Exhibit 10.21 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). F. Form of Amendment No. 1 to the IPO Pledge Agreement (filed as Exhibit E), dated July 10, 2000 (incorporated by reference to Exhibit F to Amendment No. 4 to the Initial Schedule 13D, filed July 11, 2000 (File No. 005-56295)). G. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). H. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). I. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). J. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). K. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). L. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). M. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). 55 56 N. Form of Guarantee and Pledge Agreement for non-U.S. corporations (incorporated by reference to Exhibit N to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). O. Form of Pledge Agreement for shareholders of non-U.S. corporations (incorporated by reference to Exhibit O to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). P. Form of Pledge Agreement for shareholders of non-U.S. corporations (Jersey version) (incorporated by reference to Exhibit P to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). Q. Form of Counterpart to Shareholders' Agreement for Transferee Covered Persons (incorporated by reference to Exhibit Q to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). R. Supplemental Registration Rights Instrument, dated as of June 19, 2000 (incorporated by reference to Exhibit R to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). S. Supplemental Registration Rights Instrument, dated as of July 31, 2000 (incorporated by reference to Exhibit S to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). T. Underwriting Agreement (U.S. Version), dated as of August 1, 2000 (incorporated by reference to Exhibit T to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). U. Underwriting Agreement (International Version), dated as of August 1, 2000 (incorporated by reference to Exhibit U to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). V. Underwriting Agreement (Asia/Pacific Version), dated as of August 1, 2000 (incorporated by reference to Exhibit V to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). W. Form of Power of Attorney to be executed by Covered Persons participating in the Rule 144 Program (incorporated by reference to Exhibit W to Amendment No. 8 to the Initial Schedule 13D, filed September 25, 2000 (File No. 005-56295)). X. Power of Attorney (incorporated by reference to Exhibit I to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). Y. Form of Amended and Restated Member Agreement, dated as of September 10, 2000, and amended and restated as of October 26, 2000, between GS Inc. and each SLK Covered Person. Z. Form of Pledge Agreement, dated as of October 31, 2000, between GS Inc. and each SLK Covered Person. 56 EX-99.Y 2 y41996atex99-y.txt AMENDED AND RESTATED MEMBER AGREEMENT 1 EXHIBIT Y Amended and Restated Member Agreement AMENDED AND RESTATED MEMBER AGREEMENT, dated as of September 10, 2000, as amended and restated as of October 26, 2000 (this "Agreement"), between The Goldman Sachs Group, Inc., a Delaware corporation ("Acquiror"), the signatory hereto, who is the owner of that membership interest ("Membership Interest") of SLK LLC, a New York limited liability company (the "Company") set forth next to such signatory's name in Exhibit A (the "Member") and, for purposes of Section 1(b) hereof only, SLK LLC. RECITALS A. Acquiror and the Company entered into an Agreement and Plan of Merger, dated as of September 10, 2000 (the "Original Merger Agreement"). Acquiror and the Company are in the process of amending and restating the Original Merger Agreement and a draft of the proposed amendment is attached as Exhibit G hereto (the "Draft Amended and Restated Merger Agreement") (the Original Merger Agreement, as it may be amended from time to time, the "Merger Agreement"); and, subject to the terms and conditions contained in the Merger Agreement, intend to effect the merger (the "Merger") of NewCo with and into the Company. In addition, in contemplation of, and prior to, the Merger, the Company will effect the merger of SLK Investing Co. with and into the Company (the "SLK Investing Co. Merger") pursuant to the terms of that certain Agreement of Merger by and between the Company and SLK Investing Co. (the "SLK Investing Co. Merger Agreement"). Capitalized terms used but not defined herein shall have the meaning set forth in the Merger Agreement. B. Upon the consummation of the Merger, the Merger Agreement provides for the conversion of the Member's Membership Interests into such amount of cash and shares of common stock, par value $0.01 per share ("Acquiror Common Stock"), of Acquiror (the "Shares"), as provided in the Merger Agreement. Member will derive substantial value from Acquiror's execution, delivery and performance of the Merger Agreement. C. As an inducement to, and a condition of, Acquiror's willingness to enter into the Merger Agreement, and having reviewed the Merger Agreement and the terms of the proposed Merger, Member is executing this Agreement for the benefit of Acquiror, the Firm (as hereinafter defined), and each Acquiror Party. NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained in the Merger Agreement, and intending to be legally bound hereby, Member agrees as follows: 2 1. Adoption of Merger Agreement; Irrevocable Proxy; Termination. (a) Member hereby (i) adopts and approves the resolutions attached hereto as Exhibit B and adopts and consents to each of the Merger Agreement and the SLK Investing Co. Merger Agreement and the transactions contemplated thereby including, without limitation, each of the Merger and the SLK Investing Co. Merger, in each case, in accordance with the provisions of Section 407 of the New York Limited Liability Company Law, (ii) upon request by Acquiror, agrees to vote to adopt and approve such matters described in clause (i) of this Section 1(a), (iii) agrees to vote against, and to withhold consent from, any action or proposal that would compete with or would serve to materially interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the transactions contemplated by the Merger Agreement, including, without limitation, the Merger, (iv) consents to the replacement of SLK Management Inc. by Acquiror or an Affiliate designated thereby, as the managing member of the Company, such replacement to be effective as of the Effective Time, and (v) elects to cause the payment and distribution by the Company of the Shares (as such term is defined in the Operating Agreement) of the Withdrawn Members (as such term is defined in the Operating Agreement) to such Withdrawn Members prior to the close of any applicable Additional Holding Periods (as such term is defined in the Operating Agreement) in the manner set forth in Section 3.04 of the Draft Amended and Restated Merger Agreement. For the avoidance of doubt, and without limiting in any respect the effect of clause (a)(i) of this Section 1, Member hereby approves and consents to the form, terms and provisions of, and the transactions contemplated by the Merger Agreement, including all exhibits and annexes thereto, substantially in the form of Exhibit G hereto, with such changes as the Authorized Agents (as such term is defined in the resolutions attached hereto as Exhibit B) may approve. To the extent necessary and as permitted by applicable law, Member hereby also irrevocably (i) waives any notice, or requirement thereof, with respect to any meeting of Members or other proceeding for the purpose of adopting and approving the Merger Agreement, the SLK Investing Co. Merger Agreement, the Merger, the SLK Investing Co. Merger or any related matters and (ii) acknowledges that Member will not have any dissenters' or similar rights in connection with either the Merger or the SLK Investing Co. Merger and the consummation of the other transactions contemplated by the Merger Agreement and the SLK Investing Co. Merger Agreement. If the Merger Agreement is properly terminated for any reason in accordance with its terms and the Merger is not consummated, this Agreement shall terminate concurrently with such termination of the Merger Agreement. (b) The Company hereby acknowledges receipt and delivery at its principal place of business of an executed copy of this Agreement sufficient to comply with Section 407(b) of the New York Limited Liability Company Law. 2. Cooperation and Support; HSR; No Transfer of Membership Interest. (a) Member will timely execute and deliver all Supplemental Agreements, if any, to which it is to be a party as provided in the Merger Agreement. -2- 3 (b) Each Member who will be considered an "acquiring person" under the rules and regulations promulgated under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") in connection with the consummation of the transactions contemplated by the Merger Agreement agrees to use its reasonable best efforts to file a Notification and Report Form under the HSR Act with respect to the transactions contemplated by the Merger Agreement as soon as practicable after September 10, 2000. (c) From and after September 10, 2000, and until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Member shall not Transfer (as hereinafter defined), directly or indirectly, all or any portion of its Membership Interest without Acquiror's prior written consent; provided, however, that in the event of such Member's death during the term of this Agreement, Member's Membership Interest may be transferred in accordance with the Operating Agreement. (d) Member hereby agrees that from and after September 10, 2000, until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Member will not, in any manner, directly or indirectly (including through advisors, agents or other intermediaries), take any action to seek, encourage, support or discuss any offer from any corporation, partnership, person or other entity or group (other than Acquiror) to acquire any direct or indirect Company Membership Interests, Partnership Interests or equity securities of any Subsidiary of the Company (other than the issuance by the Partnership of Class C Limited Partnership Interests and the issuance by First Options of Chicago Inc. of shares of Class A Preferred Stock in connection with joint back office arrangements in the ordinary course of business and consistent with past practices), to merge the Company or any Subsidiary or Affiliate of the Company with any such person, or to otherwise acquire any significant portion of the assets of the Company or any Subsidiary of the Company. (e) Member hereby agrees to execute and deliver to Acquiror at the Closing, a counterpart of the Acquiror Shareholders Agreement, which agreement shall be in full force and effect. (f) At any time after the original date hereof, Member shall promptly execute, acknowledge and deliver any other assurances or documents reasonably requested by Acquiror and necessary for Member to satisfy its obligations hereunder. 3. Representations, Warranties and Agreements. Member represents and warrants to, and agrees with, Acquiror as follows: (a) Member has all requisite power and authority to execute and deliver this Agreement and to perform all of the obligations imposed upon Member hereunder. Member is the lawful record and beneficial owner of Member's Membership Interest set forth next to Member's name in Exhibit A hereto, free and clear of all Liens other than Liens created by the Constitutive Documents; no other person (other than any wholly-owned affiliate -3- 4 controlled by Member) has an interest, legal, beneficial or otherwise, in Member's Membership Interest and no consent of any other person is required for the execution and delivery by Member of, and performance by Member of its obligations under, this Agreement and the Merger Agreement. Without limiting the foregoing, no person has any rights with respect to Member's Membership Interest or the cash or Shares to be issued to Member pursuant to the Merger Agreement under any community property or similar legal provision or concept. The representations and warranties contained in the second and third sentences of this Section 3(a) shall not apply to any Membership Interest to the extent that such representations and warranties would be deemed breached by virtue of any existing pledge of such Membership Interest or by an existing contractual restriction or because spousal consent is required as of September 10, 2000 (so long as such representations and warranties shall be true and correct, and any required spousal consent under any community property law shall have been obtained, at the Closing); provided, however, that this sentence shall not affect any representation and warranty relating to the right, power or authority of Member to vote or give a proxy or consent with respect to Member's Membership Interest. There are no actions, suits or proceedings pending or, to Member's knowledge, threatened against or affecting Member or the assets of Member in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which is reasonably likely to materially impair, restrict or delay the ability of Member to perform Member's obligations under this Agreement and the Merger Agreement or would make this paragraph untrue in any material respect. This Agreement constitutes the valid and legally binding agreement of Member, enforceable in accordance with its terms except as the enforceability hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to the enforcement of creditors' rights generally and by general principles of equity. (b) The execution, delivery and performance of this Agreement do not and will not (1) constitute a breach or violation of, or a default under, or cause or allow the acceleration or creation of a Lien (with or without the giving of notice, passage of time or both) pursuant to any law, rule or regulation or any judgment, decree, order, governmental or non-governmental permit or license, or any Contract to which Member is a party or to which Member or any of Member's assets are subject or bound or (2) require any consent or approval of any other person under any such law, rule, regulation, judgment, decree, order, governmental or non-governmental permit, license or Contract, in each case, which would materially impair, restrict or delay the ability of Member to perform Member's obligations under this Agreement. (c) Member will acquire the Shares for Member's own account and not with a view to, or for resale in connection with, the distribution thereof and Member has no present intention of selling, Transferring, granting any participation in, or otherwise distributing the Shares except in conformity with the Securities Act and other applicable federal and state securities laws (the "Securities Laws"). -4- 5 (d) Member has read and fully understands this Agreement, the Original Merger Agreement, the Draft Amended and Restated Merger Agreement and the terms of the proposed Merger. The SEC Documents related to Acquiror have been made available to Member, and Member understands and has evaluated the risks of an investment in the Shares. Member has been given the opportunity to ask questions of, and receive answers from, Acquiror and its representatives concerning the matters pertaining to Member's investment in the Shares and has been given the opportunity to review such additional information as was necessary to evaluate the merits and risks of an investment in the Shares. Member can bear the economic risk of an investment in the Shares. (e) Member is an "accredited investor" as defined in Regulation D, which has been adopted by the Securities and Exchange Commission (the "SEC") under the Securities Act. (f) Member understands that all the Shares will be characterized as "restricted securities" under the Securities Laws inasmuch as they are being acquired from Acquiror in a transaction not involving a public offering and that, consequently, the Shares may not be resold without first being registered under the Securities Laws except in certain limited circumstances. Specifically, Member is familiar with SEC Rules 144 and 145 and understands, and agrees to comply with, the resale limitations imposed thereby, by the legends described in paragraph (g) below and by the Securities Laws generally or cause any other person who has an interest in such Shares to so comply. (g) Member understands and agrees that the certificates issued to Member representing the Shares will bear the following legends and such other legends as Acquiror may reasonably deem necessary or desirable: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A MEMBER'S AGREEMENT WITH THE GOLDMAN SACHS GROUP, INC. (THE "MEMBER'S AGREEMENT"), AND A SHAREHOLDERS' AGREEMENT AMONG THE GOLDMAN SACHS GROUP, INC. AND THE PERSONS NAMED THEREIN, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE GOLDMAN SACHS GROUP, INC., AND WHICH, AMONG OTHER MATTERS, PLACE RESTRICTIONS ON THE VOTING AND DISPOSITION OF SUCH SECURITIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE INDIRECTLY OR DIRECTLY SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF, INCLUDING ANY DISPOSITION OF THE ECONOMIC OR OTHER RISKS OF OWNERSHIP THROUGH HEDGING TRANSACTIONS OR DERIVATIVES INVOLVING SUCH SECURITIES, ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE MEMBER'S AGREEMENT." -5- 6 "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, EXCHANGED, TRANSFERRED, ASSIGNED, PLEDGED, PARTICIPATED, HYPOTHECATED OR OTHERWISE DISPOSED OF (EACH A "TRANSFER") EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND, IF APPLICABLE, SUCH OTHER SECURITIES LAWS AND FOLLOWING RECEIPT BY THE GOLDMAN SACHS GROUP, INC. OF A LEGAL OPINION IN FORM AND SUBSTANCE SATISFACTORY TO IT THAT SUCH TRANSFER IS PERMITTED." The foregoing legends will be removed from a Share certificate at the request of Member or another holder thereof in connection with the proposed transfer thereof only upon satisfaction of Acquiror that such legend is no longer required or appropriate, including, in the case of the Securities Laws legend, receipt by Acquiror of an opinion of counsel, in form and substance satisfactory to Acquiror, to the effect that registration under the Securities Act is unnecessary in respect of such proposed transfer, in reliance upon SEC Rule 144 or 145 under the Securities Act, and that such legend is not required by law to appear on such certificate. Member agrees and consents to the entry of stop transfer orders against the transfer of Shares subject to transfer restrictions. (h) Member meets any suitability standards imposed by the state of Member's residence or imposed by any other applicable laws. (i) From and after September 10, 2000, and until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Member agrees to comply as soon as reasonably practicable with the restrictions on hedging contained in Exhibit D hereto; it being understood that Member shall in no event on or after September 10, 2000, commence any activities that involve the disposition of the economic or other risks of ownership through hedging transactions or derivatives involving Acquiror securities or Member's Membership Interest. (j) Member has not, and through the Closing Date will not have, made any election, taken any action or filed any Tax Return or any other document filed or provided to any taxing authority that is inconsistent with the Tax Returns filed and furnished by the Company and the Company's Subsidiaries or the treatment of the Company as a partnership and of each of the Company's Subsidiaries as a partnership or disregarded entity (except as set forth in Section 7.01(n) of the Disclosure Schedule to the Merger Agreement) for U.S. federal, state and local Tax purposes and Member agrees that the foregoing representations -6- 7 shall be subject to the same indemnification provisions as contemplated by Section 13 herein. (k) Member will not make any election, take any action or take any position on any Tax Return or any other document filed or provided to any Taxing Authority that is inconsistent with any Tax Return filed with any taxing authority, or furnished to such Member, by or on behalf of the Company, the Company's Subsidiaries or the Surviving LLC. (l) Member agrees to provide, and to use its reasonable best efforts to cause its respective relatives and affiliates to provide, any document or take any other action reasonably requested by Acquiror in connection with any Tax matters relating to the Company, the Company's Subsidiaries and the Surviving LLC so long as such action does not adversely affect the Member (or any of its respective relatives or affiliates). (m) Member has received, separately considered and executed the Supplemental Members Agreement attached as Exhibit E. 4. Restrictions on Transfer. (a) Member agrees that the Shares may be Transferred only as follows: (i) 33 1/3% of the Shares may be Transferred at any time after May 8, 2002; (ii) An additional 33 1/3% of the Shares may be Transferred at any time after May 8, 2003; and (iii) All of the Shares may be Transferred at any time after May 8, 2004. Notwithstanding the foregoing, if Acquiror generally waives the restrictions on transfer imposed upon the former Schedule II limited partners (the "LPs") of The Goldman Sachs Group, L.P. ("Group") in connection with Group's 1999 Plan of Incorporation in order to permit the LPs generally to engage in a registered secondary offering or estate planning transactions, Acquiror will waive the transfer restrictions in this Section 4 with respect to the Shares on (i) the same percentage basis as the waiver granted to LPs in connection with such registered secondary offering and to permit Member to sell such shares in the registered secondary offering and (ii) the same basis as the waiver granted to LPs in connection with such estate planning transactions. (For example, if each LP is permitted to sell 5% of his Acquiror Common Stock in a registered secondary offering, Member shall be permitted to sell 5% of Member's Shares; and if each LP is permitted to engage in estate planning transactions, Member shall be permitted to do so to a similar extent.) For purposes of this Agreement, the term "Transfer" means any direct or indirect sale, transfer, pledge or other disposition of securities of Acquiror or Member's Membership Interests, as the case may be, including any disposition of the economic or other risks of ownership through hedging transactions or derivatives involving Acquiror securities -7- 8 or Member's Membership Interests; provided, however, that in the event of such Member's death during the term of this Agreement, Member's Shares may be transferred in the same manner and to the same extent as the LPs may transfer their shares of Acquiror Common Stock pursuant to the Acquiror Shareholders Agreement. (c) Member agrees that, at any time Member is employed by the Firm, it will: (i) comply with respect to all Shares with Transfer restrictions related to future primary or secondary offerings of Shares if requested to do so by Acquiror to the extent that such restrictions are generally applicable to similarly titled employees of Acquiror; (ii) comply with restrictions that may be imposed by Acquiror from time to time to enable Acquiror or another party to account for a business combination using the pooling-of-interests method of accounting to the extent that such restrictions are generally applicable to similarly titled employees of Acquiror; (iii) be subject to the same internal compliance and trading policies as are in effect from time to time for similarly titled employees of Acquiror; and (iv) comply with the hedging restrictions of Acquiror relating to securities of Acquiror and financial services companies as are in effect from time to time for managing directors of Acquiror. References in this Section 4 to "Shares" shall be deemed to also refer to securities received in exchange for Shares on the same basis as provided in Section 6.4 of the Acquiror Shareholders Agreement. 5. Confidential Information. (a) In the course of involvement in the Firm's activities or otherwise, Member has obtained or may obtain confidential information concerning the Firm's businesses, strategies, operations, financial affairs, organizational and personnel matters (including information regarding any aspect of Member's tenure as a member in, or officer or employee of, the Firm or of the termination of such membership, officership or employment), policies, procedures and other non-public matters, or concerning those of third parties. Such information ("Confidential Information") may have been or be provided in written or electronic form or orally. In consideration of, and as a condition to, continued access to Confidential Information, and without prejudice to or limitation on any other confidentiality obligations imposed by agreement or by law, Member hereby undertakes to use and protect Confidential Information in accordance with any reasonable restrictions placed on its use or disclosure. Without limiting the foregoing, except as authorized by the Firm or as required by law, Member may not disclose, directly or -8- 9 indirectly, any Confidential Information, or any information derived therefrom, in whatever form, to any person unless such person is a director, officer, partner, employee, attorney or agent of the Firm and, in Member's reasonable good faith judgment, has a need to know the Confidential Information or information derived therefrom in furtherance of the business of the Firm. The foregoing obligations will survive, and remain binding and enforceable notwithstanding any termination of Member's employment with the Firm and any settlement of the financial rights and obligations arising from Member's employment with the Firm. Without limiting the foregoing, the existence of, and any information concerning, any dispute between Member and the Firm shall constitute Confidential Information except that Member may disclose information concerning such dispute to the arbitrator or court that is considering such dispute, or to Member's legal counsel (provided that such counsel agrees not to disclose any such information other than as necessary to the prosecution or defense of the dispute). (b) For purposes of this Agreement, "Firm" means (i) prior to the consummation of the Merger, the Company and its Subsidiaries and Affiliates, and (ii) from and after the consummation of the Merger, Acquiror and its Subsidiaries and Affiliates (including the Company and its Subsidiaries). 6. Noncompetition. (a) In view of Member's importance to the Firm, Member hereby agrees that the Firm would likely suffer significant harm from Member's competing with the Firm for some period of time following the consummation of the Merger, and at any time prior to the date of termination specified in the notice of termination pursuant to Section 10 hereof (the "Employment Period") and for some time thereafter, and Member understands that Acquiror would not have agreed to acquire the Company and its business unless Member entered into this Agreement. Moreover, Member recognizes and agrees that the business activities of the Firm are worldwide and that the restrictions on competition included herein are commensurate in geographic scope with those activities. Accordingly, Member hereby agrees that commencing at the time of consummation of the Merger, Member will not, without the written consent of Acquiror, until the later of (x) three years following the Effective Time and (y) two years following the date of termination of the Employment Period (such later date is referred to as the "Expiration Date"): (1) form, or acquire a 5% or greater equity ownership, voting or profit participation interest in, any Competitive Enterprise (as defined below); or (2) associate (including, but not limited to, association as an officer, employee, partner, director, consultant, agent or advisor) with any Competitive Enterprise and in connection with such association engage in, or directly or indirectly manage or supervise personnel engaged in, any activity (i) which is similar or substantially related to any activity in which Member was engaged, in whole or in part, at the Firm, -9- 10 (ii) for which Member had direct or indirect managerial or supervisory responsibility at the Firm, or (iii) which calls for the application of the same or similar specialized knowledge or skills as those utilized by Member in Member's activities with the Firm, at any time during the one-year period immediately prior to the Expiration Date (or, in the case of an action taken during the Employment Period, during the one-year period immediately prior to such action), and, in any such case, irrespective of the purpose of the activity or whether the activity is or was in furtherance of advisory, agency, proprietary or fiduciary business of either the Firm or the Competitive Enterprise. (By way of example only, this provision precludes an information systems professional from joining a management or other consulting firm and providing information technology consulting services or advice to any Competitive Enterprise.) (b) For purposes of this Agreement, a "Competitive Enterprise" is a business enterprise that (1) engages in any activity, or (2) owns or controls a significant interest in any entity that engages in any activity, that, in either case, competes anywhere with any activity in which the Firm is engaged. The activities covered by the previous sentence include, without limitation, financial services such as investment banking, public or private finance, lending, financial advisory services, private investing (for anyone other than Member and members of Member's family), merchant banking, asset or hedge fund management, insurance or reinsurance underwriting or brokerage, property management, or securities, futures, commodities, energy, derivatives or currency brokerage, sales, market making, lending, custody, clearance, settlement or trading. It is the intent that the provisions of this Section 6 shall include, for the entire period through the Expiration Date, the activities described in subparagraphs 1 through 4 of Article 14.E of the Operating Agreement as in effect as of September 10, 2000. If Member is employed by the Firm immediately following the Effective Time and the Firm terminates Member's employment with the Firm without Cause, the Firm may only enforce the provisions of this Section 6 for so long as the Firm continues to pay Member the same base salary (i.e., excluding any incentive, bonus or similar compensation) Member was receiving immediately prior to such termination. In determining whether the Firm has paid Member's base salary for any period, the Firm shall receive credit for any payments under any severance, salary continuation or similar plan or arrangement. For the purposes of this Section 6 and Section 10 only, "Cause" means (i) Member's conviction, whether following trial or by plea of guilty or nolo contendere (or similar plea), in a criminal proceeding (A) on a misdemeanor charge involving fraud, false statements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, -10- 11 counterfeiting or extortion, or (B) on a felony charge or (C) on an equivalent charge to those in clauses (A) and (B) in jurisdictions which do not use those designations; (ii) Member's engaging in any conduct which constitutes an employment disqualification under applicable law (including statutory disqualification as defined under the Exchange Act); (iii) Member's willful or grossly negligent failure to perform Member's duties to the Firm; (iv) Member's violation of any securities or commodities laws, any rules or regulations issued pursuant to such laws, or the rules and regulations of any securities or commodities exchange or association of which Acquiror or any of its subsidiaries or affiliates is a member; (v) Member's violation of any Firm policy concerning hedging or confidential or proprietary information, or Member's material violation of any other Firm policy as in effect from time to time; (vi) Member's engaging in any act or making any statement which impairs, impugns, denigrates, disparages or negatively reflects upon the name, reputation or business interests of the Firm; or (vii) Member's engaging in any willful or grossly negligent conduct detrimental to the Firm. The determination as to whether "Cause" has occurred shall be made by the Board of Directors of Acquiror in its good faith judgment. 7. Nonsolicitation of Clients. (a) Member hereby agrees that during the Employment Period and thereafter until the Expiration Date, Member will not, in any manner, directly or indirectly, (1) Solicit a Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, or (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and a Client. (b) For purposes of this Agreement, the term "Solicit" means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, encouraging or requesting any person or entity, in any manner, to take or refrain from taking any action. It is the intent that the provisions of this Section 7 shall include, for the entire period through the Expiration Date, the activities described in subparagraph 5 of Article 14.E of the Operating Agreement as in effect as of September 10, 2000. (c) For purposes of this Agreement, the term "Client" means any client or prospective client of the Firm to whom Member provided services, or for whom Member transacted business, or whose identity became known to Member in connection with Member's relationship with or employment by the Firm. 8. Nonsolicitation of Employees; Expiration. Member hereby agrees that during the Employment Period and thereafter until the Expiration Date, Member will not, in any manner, directly or indirectly, Solicit any person who is a Member or former Member of the Company or a key employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise. 9. Damages. (a) Member acknowledges that Acquiror would not have entered into this Agreement or the Merger Agreement in the absence of the Member's agreement to the provisions of this Section 9 and the Covenants and Member further -11- 12 acknowledges that such compliance with such Covenants is an important factor to the continued success of the Firm's operations and its future prospects. Member and Acquiror agree that upon the occurrence of any of the following events, the damages to the Firm would be material, but that the amount of such damages would be uncertain and not readily ascertainable. Accordingly, Member and Acquiror agree that, if, prior to the fifth anniversary of the date of this Agreement, Member breaches any of the Covenants set forth in Section 6, 7 or 8, as determined by the Board of Directors of Acquiror (the "Board") in its good faith judgment, Acquiror will be entitled to receive immediately following such determination and written demand therefor, and Member will make, within ten business days after written demand has been received, a payment in cash or Acquiror Common Stock (valued at the average closing per share price of Acquiror Common Stock for the five trading days immediately preceding the date of payment under this Section 9(a)) in such combination of cash and/or Acquiror Common Stock as the Member shall determine as and for liquidated damages (the "Liquidated Damages") in the amount set forth next to such Member's name in Exhibit C (under the heading "Liquidated Damages") attached hereto, which amount shall be the aggregate amount of liquidated damages due for all such breaches prior to the fifth anniversary of this Agreement. The payment of any amount as liquidated damages will not be construed as a release or waiver by Acquiror of the right to prevent the continuation of any such violation of such Covenants in equity or otherwise. In addition, Member and Acquiror agree that it would be too speculative to attempt to determine any amount of liquidated damages that would be applicable following the fifth anniversary of the date of this Agreement, and that any damages payable as a result of any breach following such date shall be determined without regard to this Section 9. (b) Member and Acquiror agree that the Liquidated Damages are reasonable in proportion to the probable damages likely to be sustained by the Firm if Member breaches at any time prior to the fifth anniversary of this Agreement any of the Covenants set forth in Sections 6, 7 and 8 hereof, that the amount of actual damages to be sustained by the Firm in the event of such breach is incapable of precise estimation and that such cash payments are not intended to constitute a penalty or punitive damages for any purposes. (c) Member acknowledges and agrees that Member's payment obligations under this Section 9 will be full recourse obligations and will be secured pursuant to a Pledge Agreement, in substantially the form set forth as Exhibit F hereto (the "Pledge Agreement"). Member agrees to execute and deliver to Acquiror a Pledge Agreement prior to the Closing. (d) Member acknowledges and agrees that any cash payment of Liquidated Damages pursuant to this Section 9 shall be in addition to, and not in lieu of, any forfeitures of awards (required pursuant to the terms of any such awards) that may be granted to Member in the future under one or more of the Firm's compensation and benefit plans. -12- 13 10. Employment with the Firm. (a) Member acknowledges that Acquiror would not have entered into this Agreement or the Merger Agreement in the absence of Member's agreement to the provisions of this Section 10, and Member further acknowledges that such Member's continued employment with the Firm through the second anniversary of the Effective Time is essential to assure the proper integration of the business operations of the Company into the Firm and is an important factor to the continued success of the Firm's operations and its future prospects. Accordingly, Member hereby agrees to remain employed with the Firm for the period commencing on the Effective Time through the second anniversary of the Effective Time (the "Initial Employment Period"). After the Initial Employment Period (unless otherwise agreed by Member and the Firm in writing), there will be no set term of employment. The Firm may terminate Member's employment at any time during or after the Initial Employment Period for any reason, or for no reason, and Member may terminate employment for any reason or no reason after the Initial Employment Period. Such termination shall be effected only by giving not less than ninety (90) days' prior written notice of termination; provided, however, that (i) the Firm may elect to place Member on paid leave for all or any part of such 90-day period; (ii) no advance notice need be given by the Firm to Member in connection with a termination of Member's employment for Cause or on account of Disability; and (iii) provided that the 90 days prior written notice is given, Member may terminate his employment during the Initial Employment Period on account of Good Reason, Disability or with Acquiror's written consent. For purposes of this Section 10, "Good Reason" means, without the consent of Member, a materially adverse alteration in Member's position or in the nature or status of Member's responsibilities from those in effect immediately after the Effective Time, or (ii) the Firm's requiring Member's principal place of employment to be located more than seventy-five (75) miles from the location at which Member is principally employed immediately after the Effective Time (except for required travel on the Firm's business to an extent substantially consistent with Member's customary business travel obligations in the ordinary course of business prior to the Effective Time). For purposes of this Section 10, "Disability" means Member's absence from employment for at least 180 days in any 12-month period as a result of Member's incapacity due to mental or physical illness or incapacity, as reasonably determined by the Firm. (b) At the outset of the Employment Period, Member's duties and responsibilities will not be, without Member's written consent, materially diminished from Member's duties and responsibilities immediately prior to the Effective Time (it being understood that any diminishment in duties or responsibilities as a result of the Company and its Affiliates being Subsidiaries of Acquiror shall be disregarded). During the Employment Period: (i) Member will have such duties and responsibilities as the Firm may from time to time determine; (ii) Member will devote his entire working time, labor, skill and energies to the business and affairs of the Firm, provided, however, that Member shall not be prohibited from making passive personal investments or conducting private affairs if those activities do not interfere with the services required under this Agreement; and (iii) Member will be paid such base salary and other compensation as shall be separately communicated to him. -13- 14 (c) It is understood and agreed that the provisions of this Section 10 shall not apply to: Pumpkin Trust; Michael Appleby; Patrick C. Boyle; Michael H. Davis; Robert W. Luckow; William G. Peskoff; Norman R. Schlanger; Alfred Thomas; Frank Weinberg III; and Gerard Dreyer (collectively, the "Retiring Members"). 11. Transfer of Client Relationships. (a) During the Coverage Period, Member hereby agrees to take all actions and do all such things as may be reasonably requested by the Firm from time to time to maintain for the Firm the business, goodwill, and business relationships with any of the Firm's Clients with whom Member worked during the term of Member's employment with the Firm. (b) For purposes of this Agreement, the term "Coverage Period" means, the 90-day period beginning on the date on which notice of Member's termination of employment is delivered to or by the Firm pursuant to Section 10, or in the case of termination of Member's employment by the Firm for Cause or on account of Extended Absence, the 90-day period beginning on the date of termination. 12. Prior Notice Required. Member hereby agrees that prior to accepting employment with any other person or entity prior to the date of termination, Member will provide such prospective employer with written notice of the provisions of this Agreement, with a copy of such notice delivered simultaneously to the General Counsel of Acquiror. 13. Indemnification. Member hereby agrees that it shall indemnify each Acquiror Party as an Indemnifying Party as set forth in Articles 7 and 9 of the Merger Agreement. If an indemnification claim (an "Indemnification Claim") is made pursuant to the Merger Agreement, Member agrees that, unless Acquiror delivers consent in writing, the SLK Representative (as defined in the Merger Agreement) shall have the sole and exclusive power and authority to contest, defend and settle each Indemnification Claim on behalf of Member. In addition, for purposes of Article 7 of the Merger Agreement, Member agrees that, unless Acquiror delivers consent in writing, the SLK Representative shall have sole and exclusive power and authority over tax matters reserved to the SLK Representative under the Merger Agreement. In furtherance thereof, Member agrees that (i) any action by the SLK Representative shall be conclusively binding on Member and (ii) SLK Management, Inc. shall be the initial SLK Representative and agrees to take all action necessary to cause the Company to designate SLK Management, Inc. as the SLK Representative under the terms of the Merger Agreement. 14. Taxes. (a) Tax Returns. Member hereby agrees to prepare and file (or cause to be prepared and filed) when due (taking into account any applicable extensions) all of his, her or its Tax Returns related to periods during which the Merger occurs, and Member will timely pay all Taxes reflected on such Tax Returns (or which are due with respect to such Tax Returns after adjustment by any taxing authority). Member further agrees to cooperate with -14- 15 Acquiror and to provide Acquiror with any documentation as reasonably requested in establishing the timely filing of such Tax Returns and timely payment of such Taxes. (b) Tax Treatment of the Common Stock. Member agrees that the Acquiror Common Stock subject to the restrictions on Transfer (as described in Section 4 herein) and received by the Members in the Merger will be valued for all U.S. federal income tax purposes at 100% of the mean of the high and low of the trading price of the Acquiror Common Stock on the Effective Date. (c) Cooperation. Member agrees to cooperate with the Tax Matters Partner (as defined in Section 6231(a)(7) of the Code) (or its designee) to the extent reasonably requested in any Tax audit, examination or other proceeding involving the Company, the Partnership or any Subsidiary that is treated as a partnership for U.S. federal income tax purposes for any taxable period that relates to periods prior to the Closing. Member further agrees that the existing Tax Matters Partner (or if the existing Tax Matters Partners does not so act, the Acquiror (or its designee)) shall have the right to designate or appoint any individual or entity in the name and on behalf of such Member, as the Tax Matters Partner, with respect to any taxable year of the Company, the Partnership or any of their Subsidiaries. (d) Overpayments and Underpayments. The parties hereby agree that in the event the Company makes distributions to Member pursuant to the terms of 4.01(c)(i) or (iv) of the Merger Agreement, the parties shall as promptly as practicable after the Closing determine whether the actual amount of Taxes owed by Member in respect of the net earnings of the Company during the period from July 1, 2000 to the Closing Date (after taking into account Tax credits and other available Tax assets and not including any Taxes payable as the result of sales or other dispositions requiring the recognition of unrealized gains reflected on the June 30, 2000 Financial Statements (including the "short against the box" positions)) is greater than (an "Underpayment") or less than (an "Overpayment") the amounts distributed to such Member with respect to the period from July 1, 2000 to the Closing Date in respect to such Taxes, and, in the event of an Overpayment, Member shall promptly pay to Acquiror and, in the event of an Underpayment, Acquiror shall promptly pay to Member, the amount of such difference. Member hereby understands, acknowledges and agrees that a portion of the Cash Consideration to be paid to the Members under the Merger Agreement or a portion of a tax distribution to be made to Members with respect to pre-closing taxable periods will be distributed to SLK Management, Inc. or another entity designated by the Company (the "SLK Tax Entity") prior to Closing in order to further secure performance by the Members with the terms of this Section 14(d). The amount of the portion of the Cash Consideration or of the tax distribution to be distributed to the SLK Tax Entity shall be mutually agreed by the Company and Acquiror. Member hereby agrees that the SLK Tax Entity shall have the power to take any action with respect to any payments to be made in respect of Overpayments and Underpayments and, without limitation, hereby agrees that (i) the SLK Tax Entity shall be permitted to remit to Acquiror the amount of any Overpayment with respect Member, if applicable, and (ii) authorizes the SLK Tax Entity to receive, on behalf of Member, the amount of any Underpayment in respect of Member (it -15- 16 being understood that the SLK Tax Entity shall promptly remit to Member any such amount received from Acquiror). 15. Intentionally Omitted. 16. Covenants Generally. (a) Member's covenants as set forth in Sections 5 through 14 of this Agreement are from time to time referred to herein as the "Covenants." If any of the Covenants is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such Covenant shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining such Covenants (or part of such Covenants, as the case may be) shall not be affected thereby; provided, however, that if any of such Covenants is finally held to be invalid, illegal or unenforceable because it exceeds the maximum scope determined to be acceptable to permit such provision to be enforceable, such Covenant will be deemed to be modified to the minimum extent necessary to modify such scope in order to make such provision enforceable hereunder. (b) Member understands that the provisions of the Covenants may limit Member's ability to earn a livelihood in a business similar to the business of the Firm. (c) Member acknowledges that a violation on Member's part of any of the Covenants would cause irreparable damage to the Firm. Accordingly, Member agrees that the Firm will be entitled to injunctive relief for any actual or threatened violation of any of the Covenants in addition to any other remedies it may have. (d) Acquiror will at all times maintain an effective S-8 or other registration statement covering shares of Acquiror Common Stock to be delivered pursuant to the restricted stock unit awards specified in Section 3.05 of the Merger Agreement and in connection with the administration of such awards shall treat the Member in the same manner as similarly titled employees of Acquiror and its subsidiaries. 17. Waiver and Release. (a) Member hereby irrevocably waives any right to contest the terms of the Merger Agreement and the transactions contemplated thereby, whether on the grounds of unequal or disparate treatment, inconsistency or conflict with the terms and provisions of the Operating Agreement. (b) Member hereby irrevocably releases Acquiror, each and every affiliate, shareholder, subsidiary, partner, officer, member, director and employee of Acquiror and its affiliates in their capacities as such ("Releasees") from any claims, liabilities, costs, expenses, actions, suits or demands however arising, whether at law or in equity, contingent, known or unknown, which Member or his heirs, successors or assigns may have or assert, in respect of any interest in the Company and its affiliates or arising out of any Membership Interest, Partnership Interest, or Member, partnership or employment relationship with the Company or its affiliates (including claims for breach of any contract relating to employment, partnership status or compensation, or for discrimination based upon race, -16- 17 color, ethnicity, sex, age, national origin, religion, disability, sexual orientation, or any other unlawful criterion or circumstance) which Member or Member's heirs, successors or assigns may have or have had; provided that this release shall not extend to (i) agreements entered into hereunder or in connection with the transactions contemplated by the Merger Agreement and (ii) any conduct that resulted from a Releasee's bad faith, fraud or criminal act or omission. 18. Arbitration. Subject to the provisions of Sections 19 and 20 hereof, any dispute, controversy or claim between Member and the Firm arising at or after the Effective Time out of or relating to or concerning the provisions of this Agreement, relating to or arising out of Member's employment with the Firm or otherwise concerning any rights, obligations or other aspects of Member's employment relationship in respect of the Firm ("Employment Related Matters"), shall be finally settled by arbitration in New York City before, and in accordance with the rules then obtaining of, the New York Stock Exchange, Inc. (the "NYSE") or, if the NYSE declines to arbitrate the matter, the American Arbitration Association (the "AAA") in accordance with the commercial arbitration rules of the AAA. 19. Injunctive Relief; Submission to Jurisdiction; Specific Performance. (a) Notwithstanding the provisions of Section 18, and in addition to its right to submit any dispute or controversy to arbitration, the Firm may bring an action or special proceeding in a state or federal court of competent jurisdiction sitting in the City of New York, whether or not an arbitration proceeding has theretofore been or is ever initiated, for the purpose of temporarily, preliminarily, or permanently enforcing the provisions of the Covenants, or to enforce an arbitration award, and, for the purposes of this Section 19, Member (i) expressly consents to the application of Section 20 to any such action or proceeding, (ii) agrees that proof will not be required that monetary damages for breach of the provisions of the Covenants would be difficult to calculate and that remedies at law would be inadequate and (iii) irrevocably appoints the General Counsel of Acquiror as Member's agent for service of process in connection with any such action or proceeding, who shall promptly advise Member of any such service of process. (b) Each party hereto severally acknowledges that it will be impossible to measure in money the damage to the other party if the party hereto fails to comply with any of the obligations imposed by this Agreement and that every such obligation is material. Accordingly, each party hereto severally agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law. 20. Choice of Forum. (a) MEMBER AND THE FIRM HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT OR ANY EMPLOYMENT RELATED MATTER THAT IS NOT OTHERWISE ARBITRATED ACCORDING TO -17- 18 THE PROVISIONS OF SECTION 18 HEREOF. This includes any suit, action or proceeding to compel arbitration or to enforce an arbitration award. This also includes any suit, action, or proceeding arising out of or relating to any post-employment Employment Related Matters. Member and the Firm acknowledge that the forum designated by this Section 20 has a reasonable relation to this Agreement, and to Member's relationship to the Firm. Notwithstanding the foregoing, nothing herein shall preclude the Firm from bringing any action or proceeding in any other court for the purpose of enforcing the provisions of Sections 18, 19 or 20. (b) The agreement of Member and the Firm as to forum is independent of the law that may be applied in the action, and Member and the Firm agree to such forum even if the forum may under applicable law choose to apply non-forum law. Member and the Firm hereby waive, to the fullest extent permitted by applicable law, any objection which Member or the Firm now or hereafter may have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding in any court referred to in Section 20(a). Member and the Firm undertake not to commence any action arising out of or relating to or concerning this Agreement in any forum other than a forum described in this Section 20. Member and the Firm agree that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any such suit, action or proceeding in any such court shall be conclusive and binding upon Member and the Firm. 21. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. 22. No Right to Employment. Nothing in this Agreement or the Merger Agreement shall confer upon Member the right to employment or continued employment by the Firm or affect the Firm's right to terminate such employment at will. 23. Miscellaneous. (a) This Agreement and the Merger Agreement shall supersede any other agreement, written or oral, pertaining to the matters covered herein. (b) Notices hereunder shall be delivered to Acquiror at its principal executive office directed to the attention of its General Counsel, and to Member at Member's last address appearing in the Firm's employment records. (c) This Agreement may not be amended or modified, other than by a written agreement executed by Member and Acquiror or its successors, nor may any provision hereof be waived other than by a writing executed by Member or Acquiror or its successors; provided, that any waiver, consent, amendment or modification of any of the provisions of this Agreement will not be effective against the Firm without the written consent of Acquiror or its successors. Member may not, directly or indirectly (including by operation of law), assign Member's rights or obligations hereunder without the prior written consent of Acquiror or its successors, and any such assignment by Member in violation of -18- 19 this Agreement shall be void. This Agreement shall be binding upon Member's permitted successors and assigns. Without impairing Member's obligations hereunder, Acquiror may at any time and from time to time assign its rights and obligations hereunder to any of its subsidiaries or affiliates (and have such rights and obligations reassigned to it or to any other subsidiary or affiliate). This Agreement shall be binding upon and inure to the benefit of the Firm and its assigns. (d) Without limiting the provisions of Section 16(a) hereof, if any provision of this Agreement is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions shall not be affected thereby. (e) Except as expressly provided herein, this Agreement shall not confer on any person other than Acquiror, the Firm and each Member any rights or remedies hereunder. (f) The captions in this Agreement are for convenience of reference only and shall not define or limit the provisions hereof. -19- 20 IN WITNESS WHEREOF, each signatory hereto has caused this Agreement, including the written consent evidenced hereby, to be executed and delivered this 10th day of September, 2000. THE GOLDMAN SACHS GROUP, INC. (on its behalf, and on behalf of its subsidiaries and affiliates) By: -------------------------------- Name: SLK LLC (with respect to Section 1(b) only) By SLK Management Inc., its Managing Member By: -------------------------------- Name: (As received by SLK LLC at its principal office) MEMBER -------------------------------- Name: EX-99.Z 3 y41996atex99-z.txt PLEDGE AGREEMENT 1 EXHIBIT Z PLEDGE AGREEMENT PLEDGE AGREEMENT, dated as of October 31, 2000 (the "Agreement"), by and between The Goldman Sachs Group, Inc., a Delaware corporation ("GS Inc."), on its behalf and on behalf of its subsidiaries and affiliates (collectively with GS Inc., and its and their predecessors and successors, the "Firm"), and the individual whose name appears at the end of this Agreement ("Pledgor"). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below). RECITALS A. Covenants. In connection with the execution and delivery of that certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 10, 2000, by and between GS Inc. and SLK LLC, a New York limited liability company (the "Company"), Pledgor and GS Inc. have entered into a Member Agreement (the "Member Agreement"), in respect of, inter alia, Pledgor's obligations (the "Obligations") not to engage in competitive activities, not to solicit the Firm's clients or employees, and to cooperate with the Firm in maintaining certain relationships following the termination of Pledgor's employment. In addition, Pledgor has agreed under the Member Agreement to certain provisions regarding arbitration, choice of law and choice of forum, injunctive relief and submission to jurisdiction with respect to the enforcement of the Obligations. B. The Pledge. Pursuant to the Member Agreement, Pledgor has agreed to pay a certain amount of liquidated damages to GS Inc. in respect of any breach by Pledgor of certain of the Obligations set forth in the Member Agreement pursuant to Section 9 of such Agreement (the "Payment Amounts"). As security for the timely payment of the Payment Amounts, Pledgor has agreed to pledge to the Firm shares (the "Pledged Shares") of common stock of GS Inc. (the "Common Stock"), or other collateral described below, all as set forth herein. NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Pledge. (a) Unless otherwise requested by Pledgor pursuant to the last sentence of Section 1(b), as collateral security for the full and timely payment of the Payment Amounts, Pledgor hereby delivers, deposits, pledges, transfers and assigns to GS Inc., in form transferable by delivery, and creates for the benefit of GS Inc. a perfected first priority security interest in, Pledged Shares with a Fair Market Value (as defined in 2 Section 1(d)) on the date hereof equal to the amount of the Payment Amounts (and all certificates or other instruments or documents evidencing the Pledged Shares) and, except as set forth in Sections 1(c) and 2(a), all proceeds thereof (together with any securities or property to be delivered to GS Inc. pursuant to Section 2(b) and, upon substitution or delivery in accordance with Section 1(b), any Substitute Collateral (as defined in Section 1(b)), "Pledged Securities"). Pledgor herewith delivers to GS Inc. appropriate undated security transfer powers duly executed in blank (or other documents deemed necessary or appropriate by GS Inc. to give GS Inc. control (as defined in the Uniform Commercial Code of the State of New York (the "UCC"))) (such transfer powers and other appropriate documents, the "Control Documents") in respect of Pledged Securities, and will deliver Control Documents for all Pledged Securities to be pledged hereunder from time to time. (b) During the term of this Agreement, Pledgor may substitute for Pledged Securities readily marketable direct obligations of the United States, any agency thereof, or any triple-A rated sovereign, shares of Common Stock, or other collateral acceptable to the Board of Directors of GS Inc. in its sole and absolute discretion (collateral other than Pledged Shares, the "Substitute Collateral") with a Fair Market Value on the date of substitution equal to or greater than the Fair Market Value on such date of the Pledged Securities to be released in exchange therefor. Upon such substitution, the Pledged Securities replaced by such Substitute Collateral shall be released from the pledge hereunder. (c) If Pledgor is not prohibited from doing so by the terms of the Member Agreement, the Shareholders' Agreement, dated as of May 7, 1999, among GS Inc. and the individuals listed on Appendix A thereto, as in effect from time to time (the "Shareholders' Agreement"), any other written agreement with GS Inc. or the Firm, or any law or regulation or Firm policy (collectively, the "Restrictions"), this Agreement shall not prohibit Pledgor from disposing of Pledged Shares; provided, that such disposition shall be made expressly subject to all of GS Inc.'s rights hereunder, that the provisions of this Agreement shall (as described in Section 1(a)) apply to all proceeds of such disposition and that such disposition shall be permitted only if GS Inc. shall have determined that such disposition will not result in the loss for any period by GS Inc. of the perfection of its first priority security interest in such proceeds; provided, further, that the proceeds of such disposition are cash, Substitute Collateral, Tender or Exchange Offer Consideration or a combination thereof, with an aggregate Fair Market Value on the date of such disposition equal to or greater than the Fair Market Value on such date of the Pledged Shares so disposed. Pledgor shall give GS Inc. prior written notice of any proposed transaction under this Section 1(c). For purposes of this Agreement, "Tender or Exchange Offer Consideration" means the consideration issuable for Pledged Shares pursuant to any tender or exchange offer in which the Pledgor is not prohibited from participating by the Restrictions. -2- 3 (d) For purposes of this Agreement, the "Fair Market Value" of any Pledged Security means, as of any date (1) in the case of a Pledged Security that is a share of Common Stock, the average of the daily closing prices for a share of Common Stock on the principal securities exchange or market on which the Common Stock is traded for the 20 consecutive business days before the date in question (the "Average Closing Price"); provided, however, that the Fair Market Value of a share of Common Stock for purposes of determining the initial amount to be pledged as of the date of this Agreement shall be $128.025 per share of Common Stock; and provided, further, that in connection with any taking of ownership by GS Inc. of Pledged Securities under Section 3 hereof, the Average Closing Price shall be determined as the average of the daily closing prices for a share of Common Stock on the principal securities exchange or market on which the Common Stock is traded for the 20 consecutive business days before the date the Enforcement Notice (as hereafter defined) was given, and (2) otherwise, the fair market value thereof as determined in good faith by GS Inc. Any good faith determination by GS Inc. of the Fair Market Value of any Pledged Security will be binding on Pledgor. 2. Administration of Security. The following provisions shall govern the administration of Pledged Securities: (a) So long as no Payment Event (as defined below) has occurred and is continuing, Pledgor shall (subject to any restrictions imposed under the Shareholders' Agreement) be entitled to vote Pledged Securities and to exercise all of Pledgor's rights under the Shareholders' Agreement in respect of the Pledged Shares, and to receive and retain all regular quarterly cash dividends and distributions and, except as set forth in Section 2(b) below, other distributions thereon and to give consents, waivers and ratifications in respect thereof. As used herein, a "Payment Event" shall mean the failure by Pledgor to make any payment of the Payment Amounts upon demand by GS Inc. therefor as provided in the Member Agreement. (b) If Pledgor becomes entitled to receive, or receives, any certificate representing Pledged Securities (or other security that may succeed Pledged Securities or any security issued as a dividend or distribution in respect of Pledged Securities) in respect of any stock split, reverse stock split, stock dividend, spinoff, splitup, merger or other combination, exchange or distribution in connection with any reclassification, increase or reduction of capital, in each case, with respect to Pledged Securities, Pledgor agrees to accept the same as GS Inc.'s agent and to hold the same in trust on behalf of and for the benefit of GS Inc. and to deliver the same forthwith to GS Inc. in the exact form received, with the endorsement of Pledgor when deemed necessary or appropriate by GS Inc. of undated security transfer powers duly executed in blank, to be held by GS Inc., subject to the terms of this Agreement, as additional collateral security for the Payment Amounts. -3- 4 (c) Pledgor hereby agrees that GS Inc. is authorized to hold Pledged Securities through one or more custodians. GS Inc. and its agents (and its and their assigns) shall have no obligation in respect of Pledged Securities, except to hold and dispose of the same in accordance with the terms of this Agreement. In the event that Pledgor substitutes cash for Pledged Securities as provided in Section 1(b) or 1(c), such cash shall be invested, in GS Inc.'s sole discretion, in any of the following: (a) obligations issued or guaranteed by the United States of America or any agency or instrumentality thereof; (b) certificates of deposit of or accounts with national banks or corporations endowed with trust powers having capital and surplus in excess of $100,000,000; (c) commercial paper at the time of investment rated A-1 by Standard & Poor's Corporation or Prime-1 by Moody's Investor's Service, Inc.; and (d) obligations issued by any state or municipality of the United States. (d) Pledgor agrees with GS Inc. that: (i) Pledgor will not, and will not purport to, grant or suffer liens or encumbrances against (excluding for such purpose the Shareholders' Agreement), or except as provided in Section 1(c), sell, transfer or dispose of, any Pledged Securities other than to or in favor of GS Inc.; (ii) GS Inc. is authorized, at any time and from time to time, to file financing statements and give notice to third parties regarding Pledged Securities without Pledgor's signature to the extent permitted by applicable law, to transfer all or any part of Pledged Securities to GS Inc.'s name or that of its nominee, and, subject to the provisions of Section 2(a), to exercise all rights as if the absolute owner thereof; and (iii) Pledgor has provided GS Inc. with Pledgor's true legal name and principal residence, and Pledgor will not change Pledgor's name without 30 days' prior written notice to GS Inc. (e) Subject to the earlier disposition and application of Pledged Securities pursuant to this Agreement following a Payment Event, Pledged Securities shall be released from the pledge hereunder, and the lien hereby created in such Pledged Securities shall simultaneously be released, upon the earliest to occur of (i) Pledgor's death, (ii) upon a sale in accordance with Section 1(c) or (iii) the later of three years from the Effective Time and two years following the date of termination of the Employment Period (as such term is defined in the Member Agreement), and all remaining Pledged Securities shall be thereupon released from the pledge hereunder and this Agreement shall terminate. Notwithstanding the foregoing, no Pledged Securities shall be released -4- 5 from the pledge hereunder pursuant to this Section 2(e), if there are one or more pending disputes between Pledgor and GS Inc. as to the occurrence of a Payment Event or as to the right of GS Inc. or the Firm to exercise its remedies under this Agreement or the Member Agreement, including realization against Pledged Securities in accordance with Section 3 hereof, and this Agreement shall not terminate until the resolution of all such disputes. (f) GS Inc. shall immediately upon request by Pledgor execute and deliver to Pledgor such instruments, deeds, transfers, assurances and agreements, in form and substance as Pledgor shall reasonably request, including the withdrawal or termination of any financing statements and amendments thereto, or the filing, withdrawal, termination or amendment of any other document required under applicable law to evidence the termination of the security interest created hereunder with respect to any securities that are released from the pledge hereunder in accordance with the provisions of this Agreement. 3. Remedies in Case of a Payment Event. If a Payment Event has occurred and is continuing, GS Inc. shall have the rights and remedies of a secured party under Article 9 of the UCC. To the extent required and permitted by applicable law, GS Inc. will give Pledgor notice of the time and place of any public sale or of the time after which any private sale or other disposition of Pledged Securities is to be made, by sending notice at least three days before the time of sale or disposition, which Pledgor hereby agrees is reasonable. GS Inc. need not give such notice if not required by the UCC. Pledgor acknowledges the possibility that the public sale of some or all Pledged Securities by GS Inc. may not be made without a then existing and effective registration statement under the Securities Act of 1933, as amended. Pledgor acknowledges and agrees with GS Inc. that GS Inc. has no affirmative obligation to prepare or keep effective any such registration statement and agrees that at any private sale of Pledged Securities may be sold at a price that is less than the price which might have been obtained at a public sale or that is less than the aggregate outstanding amount of the Payment Amounts. For so long as Pledged Securities consist of securities of a type customarily sold in a recognized market or which are the subject of widely distributed standard price quotations, following a Payment Event GS Inc. may, as its remedy hereunder, take ownership of such number of Pledged Securities as are necessary (based upon the Fair Market Value thereof) to satisfy the then unpaid portion of the Payment Amounts (without payment of any cash consideration) by giving written notice to Pledgor (the "Enforcement Notice"). Effective upon the giving of the Enforcement Notice, and without further action on the part of the parties to this Agreement, GS Inc. shall be deemed to have (1) taken ownership and disposed of the lesser of (A) all Pledged Securities or (B) such whole number of Pledged Securities as has a Fair Market Value at least equal to the then unpaid Payment Amounts; and (2) received proceeds in the amount of the Fair Market Value of such Pledged Securities and applied such proceeds to the -5- 6 payment of any then Payment Amounts. Any excess net proceeds from the deemed sale of such Pledged Securities will continue to be held as Pledged Securities under this Agreement until returned in accordance with Section 2(e). Nothing in this Agreement, however, shall require the Firm to take ownership of Pledged Securities in accordance with this Section 3 in order to satisfy Pledgor's obligation to pay the Payment Amounts. 4. Pledgor's Obligations Not Affected. Except as provided in Section 9(b), the obligations of Pledgor under this Agreement shall remain in full force and effect without regard to, and shall not be impaired or affected by (a) any subordination, amendment or modification of or addition or supplement to this Agreement, the Member Agreement, the Merger Agreement or any assignment or transfer thereof; (b) any exercise or non-exercise by GS Inc. of any right, remedy, power or privilege under or in respect of this Agreement, the Member Agreement, Merger Agreement or any waiver of any such right, remedy, power or privilege; (c) any waiver, consent, extension, indulgence or other action or inaction in respect of this Agreement, the Member Agreement, Merger Agreement or any assignment or transfer of any thereof; (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like, of GS Inc., whether or not Pledgor shall have notice or knowledge of any of the foregoing; (e) any substitution of collateral pursuant to Sections 1(b) or 1(c); or (f) any other act or omission to act or delay of any kind by Pledgor, GS Inc. or any other person or any other circumstance whatsoever which might, but for the provisions of this clause (f), constitute a legal and equitable discharge of Pledgor's obligations hereunder. 5. Attorneys-in-Fact. Each of GS Inc., and the General Counsel of GS Inc. from time to time, acting separately, are hereby appointed the attorneys-in-fact of Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that GS Inc. reasonably may deem necessary or advisable to accomplish the purposes hereof, which appointments as attorneys-in-fact are irrevocable as ones coupled with an interest. 6. Termination. Upon the earliest to occur of the events set forth in Section 2(e) hereof, this Agreement shall terminate and GS Inc. shall return to Pledgor the remaining Pledged Securities, except as otherwise provided in such Section. 7. Notices. All notices or other communications required or permitted to be given hereunder shall be delivered as provided in the Member Agreement. 8. No Third Party Beneficiaries. Except as expressly provided herein, this Agreement shall not confer on any person other than the Firm and Pledgor any rights or remedies hereunder. -6- 7 9. Miscellaneous. (a) This Agreement, the Member Agreement and the Merger Agreement contain the entire understanding and agreement between Pledgor and GS Inc. with respect to the matters expressly covered therein and supersede any other agreement, written or oral, pertaining to such matters. (b) This Agreement may not be amended or modified other than by a written agreement executed by Pledgor and GS Inc. or its successors, nor may any provision hereof be waived other than by a writing executed by Pledgor or GS Inc. or its successors; provided, that any waiver, amendment or modification of any of the provisions of this Agreement will not be effective against the Firm without the written consent of the Chief Executive Officer of GS Inc. or its successors, or such individual's designee. Pledgor may not, directly or indirectly (including by operation of law), assign Pledgor's rights or obligations hereunder without the prior written consent of the Chief Executive Officer of GS Inc. or its successors, or such individual's designee, and any such assignment by Pledgor in violation of this Agreement shall be void. This Agreement shall be binding upon Pledgor's permitted successors and assigns. Without impairing Pledgor's obligations hereunder, GS Inc. may at any time and from time to time assign its rights and obligations hereunder to any of its subsidiaries or affiliates (and have such rights and obligations reassigned to it or to any other subsidiary or affiliate). This Agreement shall be binding upon and inure to the benefit of the Firm and its assigns. (c) If any provision of this Agreement is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining provisions shall not be affected thereby. (d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, AND SHALL BE SUBJECT TO THE PROVISIONS OF SECTIONS 18, 19 AND 20 OF THE MEMBER AGREEMENT. (e) The captions in this Agreement are for convenience of reference only and shall not define or limit the provisions hereof. -7- 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered on the date first above written. THE GOLDMAN SACHS GROUP, INC. By: -------------------------------- PLEDGOR By: -------------------------------- Name: -----END PRIVACY-ENHANCED MESSAGE-----